IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE M.VENUGOPAL W.A.No.453 of 2000 G.Sanjeevi .. Appellant/ Petitioner Vs. 1.State Express Transport Corporation Ltd., rep. by its Managing Director, Mount Road,Chennai – 2. 2.The Branch Manager, Thiruvalluvar Transport Corporation, Tuticorin. 3.The Presiding Officer, Additional Labour Court, Madurai – 20. .. Respondents/ Respondents (cause title amended as per the order dated 09.03.2010 made in W.A.M.P.No.93 of 2009) Appeal filed under clause 15 of the letters patent against the order dated 10.02.1999 made in W.P.No.1073 of 1990 petition presented to this Court to issue a writ of certiorari calling for the records in award dated 30.9.89 passed in I.D.No.4/88 on the file of the Third respondent and quash the same. For appellant .. Mr.D.Saravanan For respondents .. Mr.T.Chandrasekaran for R1 and R2 R3 – Court JUDGMENT (Judgment of the Court was delivered by R.BANUMATHI, J.) This writ appeal arises out of the order dated dated 10.02.1999 made in W.P.No.1073 of 1990, whereby the learned single Judge has set aside the order of dismissal of the appellant and ordered reinstatement of the appellant in service with continuity of service but without benefit of backwages. Challenging the non-awarding of benefit of backwages, the appellant/workman who was the Security Guard in the first respondent Transport Corporation has filed this writ appeal. https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts are that the appellant joined the services of the Tamil Nadu State Transport Corporation in the year 1973 as Security Guard. As soon as Pallavan Transport Corporation (P.T.C.) was established, his services was placed with the State Transport Corporation in the Express Wing, which was subsequently formed into a separate Corporation known as Thiruvalluvar Transport Corporation. 3.While the appellant was working in Tuticorin Branch and he was served with a charge memo dated 15.04.1980 containing the following charges viz., (i) Not in uniform (ii) Record Book was not maintained properly and (iii) On 15.04.1980 was on duty without shaven face. The appellant submitted his explanation denying all the charges and the appellant was directed to attend the enquiry on 25.06.1980. Thereafter, by order dated 19.06.1980, the appellant was placed under suspension. Further a modified charge memo dated 11.07.1980 was issued to the appellant on the charges (i) did not obey the orders of superiors; (ii) did not obey the rules of the Security Guards and (iii) failed to discharge the duty. The second charge memo was served upon the appellant and the appellant submitted his explanation. Being dissatisfied with the explanation, an enquiry was conducted. The enquiry officer held that all three charges were proved. Accepting the report of the enquiry officer, the appellant was dismissed from service by the order dated 07.03.1981. 4.Being aggrieved with the order of dismissal from service, the appellant raised a dispute before the Conciliation Officer, Thiruvallur and the conciliation failed. Thereafter, the Government refused to refer the dispute to the Labour Court and therefore, the appellant filed a writ petition in W.P.No.1276 of 1983. By the order dated 17.12.1986, the Court has allowed the writ petition and thereafter the industrial dispute was adjudicated before the Labour Court, Madurai in I.D.No.4 of 1988. By the order dated 30.09.1989, the Labour Court justified the order of dismissal of the appellant from service. Challenging the order of the Labour Court in I.D.No.4 of 1988, the appellant has filed a writ petition in W.P.No.1073 of 1990. 5.In the writ petition, the learned single Judge observed that the appellant did not refuse to carry out the work but he has only raised a protest with regard to the entrustment of the work on the ground that it was not the duty of the Security staff. The learned single Judge took the view that the appellant only protested with regard to the instructions and while so, the punishment of dismissal from service is disproportionate to the gravity of the charges levelled against the appellant. Referring to the decisions in Rama Kant Misra Vs. State of West Bengal (AIR 1982 SC 1552) and Hind Constran & Engg. Co. Ltd., Vs. Their Workmen (1965 1 LLJ 462), the learned single Judge held that the punishment of dismissal imposed upon the appellant was shockingly disproportionate and since the appellant only protested with regard to the instructions, a lesser punishment can be imposed upon the appellant instead of removal from service. On those findings, the learned single Judge set aside the https://hcservices.ecourts.gov.in/hcservices/ order of dismissal of the appellant and directed the respondents to reinstate the appellant in service with continuity of service. However, the learned single Judge has not granted backwages. Non- awarding of backwages by the learned single Judge is the subject matter of challenge in this writ appeal. 6.Mr.D.Saravanan, learned counsel for the appellant submitted that the appellant was out of service for more than 19 years and even though the appellant has worked with the Transport Corporation for more than seven years, while ordering reinstatement, the learned single Judge ought to have granted the benefit of backwages. It was further submitted that the learned single Judge did not keep in view the fact that the appellant was out of employment for a long period of more than 18 years and absolutely, there was no allegation that the workman was employed or gainfully employed elsewhere after the order of termination. It was further submitted that the learned single Judge did not consider the ratio of the decision of the Supreme Court in 1994 III LLJ (suppl) 1111 where the Supreme Court has held that when the order of termination is declared as null and void, the workman is entitled to reinstatement and backwages. 7.Mr.T.Chandrasekaran, learned counsel for the Transport Corporation/R1 and R2 submitted that when there is an order of reinstatement, award of backwages is not automatic and is purely discretionary. Placing reliance upon the decisions in Managing Director, Balasaheb Desai Sahakari S.K. Limited Vs. Kashinath Ganapati Kambale ((2009) 2 SCC 288) and Laxmi Rattan Cotton Mills Limited Vs. State of Uttar Pradesh and Others ((2009) 1 SCC 695), the learned counsel for the Transport Corporation/R1 and R2 submitted that the appellant was out of employment for a long period of 18-19 years and the burden of proof lies upon the appellant to show that he was not gainfully employed elsewhere and in the absence of any pleadings and evidence adduced by the appellant, the learned single Judge rightly declined the backwages. It was further submitted that the payment of backwages depends upon several factors and the appellant has not satisfactorily established any aspect to show as to how he is entitled to the benefit of backwages. 8.The appellant joined in service as Security Guard on 05.11.1973 and he was suspended on 19.06.1980 and after enquiry, he was dismissed by the order dated 07.03.1987. In the writ petition, the learned single Judge took the view that as against the nature of charges levelled, the punishment of dismissal from service is disproportionate and ordered reinstatement. In compliance with the direction of the learned single Judge, the appellant was also reinstated on 05.04.1999 and he attained the age of superannuation on 31.03.2002. 9.The point falling for our consideration in this appeal falls in a narrow compass i.e. when the learned single Judge has ordered reinstatement whether the appellant ought to have been granted the benefit of backwages? https://hcservices.ecourts.gov.in/hcservices/ 10.As rightly submitted by the learned counsel for the Transport Corporation/R1 & R2, whenever the order of dismissal/termination is set aside and reinstatement is ordered, grant of backwages is not automatic. It is a discretionary power vested with the Court/Tribunal. Keeping in view the facts in their entirety, award of backwages depends upon the variety of factors viz., length of service, nature of charges and the period during which the workman was out of employment and such other circumstances, grant of backwages is not automatic. 11.Holding that relief of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation, in Jagnir Singh v. Haryana State Agriculture Marketing Board and Another (JT (2009) 9 SC 396), the Supreme Court held as under:- "11. ..... this Court has consistently taken the view that the relief of reinstatement with back-wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention to the prescribed procedure." 12.Holding that payment of entire back wages should not be granted mechanically only because on technical grounds as it was found to be in contravention of the provisions of the Act, in U.P. State Brassware Corporation Limited v. Uday Narain Pandey ((2006) 1 SCC 479), the Supreme Court held as under:- " No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P.Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence." 13.In the decision in Managing Director, Balasaheb Desai Sahakari S.K. Limited Vs. Kashinath Ganapati Kambale ((2009) 2 SCC 288), the Supreme Court has held as under: "13.It is now well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant. This Court in U.P. State Brassware Corpn. Ltd., Vs. Uday Narain Pandey ((2006) 1 SCC 479: 2006 SCC (L&S) 250) held: (SCC pp.495- 96, paras 61-62) 61.It is not in dispute that the respondent did not raise any plea in his written statement https://hcservices.ecourts.gov.in/hcservices/ 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. 62.In Kendriya Vidyalaya Sangathan Vs. S.C. Sharma ((2005) 2 SCC 363: 2005 SCC (L&S) 270), this Court held: (SCC p.366, para 16) "16..... When the question of determining the entitlement of a person to backwages 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." 14.In the instant case, as we pointed out earlier, the appellant has been out of employment from 07.03.1987, the day on which he was dismissed from service. Thereafter, based upon the order in W.P.No.1073 of 1990, the appellant was reinstated only on 05.04.1999. The appellant was out of employment for a long period of about 18-19 years. When the appellant was out of employment for such a long period, the burden of proof lies upon the appellant to show that during that period, he was not gainfully employed. Excepting the averments in the writ petition, the appellant has not adduced any evidence to show that he was not gainfully employed. That apart, the charges are in the nature of insubordination and not maintaining the registers properly. In the light of the proved charges and the long period during which the appellant was out of employment, in our considered view, the learned single Judge rightly declined the benefit of backwages to the appellant. As such, we do not find any reason, warranting interference with that order of the learned single Judge. 15.In the result, the order of the learned single Judge dated 10.02.1999 made in W.P.No.1073 of 1990, declining to grant the benefit of backwages is confirmed. The writ appeal fails and the same is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. mmi https://hcservices.ecourts.gov.in/hcservices/ To 1.The Managing Director, State Express Transport Corporation Ltd., Mount Road, Chennai – 2. 2.The Branch Manager, Thiruvalluvar Transport Corporation, Tuticorin. 3.The Presiding Officer, Additional Labour Court, Madurai – 20. Copy to The Section Officer VR Section, High Court, Madras-104 1 cc to Mr.T. Chandrasekaran, Advocate, SR. 28303 1 cc top Mr.D. Saravanan, Advocate, SR. 27883 W.A.No.453 of 2000 PVR (CO) kk 20/5 https://hcservices.ecourts.gov.in/hcservices/