IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9206 of 2000 OM PRAKASH, S/O GANGAL MALL, PROPRIETOR BHARAT RESTUARANT, AT SARAIYAGANJ, P.O. & P.S.- MUZAFFARPUR, DISTRICT-MUZAFFARPUR. ............................................ PETITIONER Versus 1. THE PRESIDING OFFICER,LABOUR COURT, CHHATA CHOWK, MUZAFFARPUR. 2. SRI GIRIJA SHANKAR BAJPAI, S/O SHIV RAM BAJPAI, VILL. & P.O.- LALU CHAPRA, P.S.-PARU, DISTRICT-MUZAFFARPUR, PRESENT ADDRESS-BHAGWANPUR CHATTI, NEAR POKHAR, MUZAFFARPUR. ............................................ RESPONDENTS ----------- 05. 19.01.2009 Heard Mr. K.N.Gupta learned counsel for the petitioner, and counsel for the State. Despite service of notice and filing of Vakalatnama no one has appeared on behalf of the Respondent no. 2. The Labour Court in the impugned award in a proceeding under Bihar Shops and Establishment Act, hereinafter referred to as the Act, has held that the mandatory provisions under Section 26(2) while removing the employee, respondent No. 2, was not followed and as such the respondent No. 2 was entitled for reinstatement of service with full back wages. Mr. Gupta while assailing the aforementioned award of the Labour Court firstly contended that the Labour Court had failed to examine the plea of the employer petitioner as with regard to the misconduct committed by the employee respondent No. 2 though evidence was led to this effect by the petitioner. Mr. - 2 - Gupta, however, could not satisfy this Court when he was asked to explain the pleadings on record in this respect in as much as the employee respondent No. 2 in his complaint petition before the Labour Court had specifically asserted in Paragraph Nos 14 and 15 that before being removed from service, he was not even given a liberty to submit his explanation nor any enquiry was conducted and in fact he had also not committed any misconduct. The aforesaid specific assertion of the employee in Paragraph Nos. 14 and 15 of this complaint petition was however not decided by the employer petitioner and the corresponding paragraph no. 20 of show cause reply of the petitioner makes a very interesting reading where the facts, were admitted by taking a plea in paragraph no. 20 that they were matter of record and did not require any reply. A question would arise that when an employee makes a specific assertion that his removal was bad in terms of Section 26(2) of the Act on the ground of there being no notice and no. payment of salary of one month and that he was never subjected to any misconduct much less any charge sheet or enquiry can the employer be given a liberty to lead evidence before the Labour Court if it does not choose to deny the facts mentioned in the complaint petition. The obvious answer will be in - 3 - negative. The employer can not be allowed to adopt a roving and vascilliating stand. The moment the facts as pleaded by the employee was not specifically denied by the employer, it will be stopped from raising the such plea while leading evidence to this effect. That being so, this Court would not find any error in the findings recorded by the Labour Court which has held that : - ^^------------ bl dsl esa ;g fcYdqy Li"V gS fd bl dsl esa u rks dksbZ enquiry gqbZ gS u vkosnd ls dksbZ O;kk[;k gh iwNk x;k gS vkSj u dksbZ lk{; gh fy;k x;k gS ----------** Learned Counsel for the petitioner then contended that award is unsustainable for yet another reason that a period of ten years was consumed only by the Labour Court between adducing on evidence and hearing of the arguments. This aspect of the matter has been explained in Paragraph No. 15 of the writ application. Mr. Gupta in this context also refers to and relies on the judgment of the Apex Court in the case of Krishi Utpadan Mandi Samity Vs. Pahal Singh reported in 2007(2) P.L.J.R.-231(SC) This Court would find that in the aforesaid judgment, the Apex Court had itself noted the peculiar facts of that case to record a specific opinion that basic requirement for grant of any relief by the Labour Court had not been fulfilled in as much as the appointment of - 4 - the workman was made in excess of the staffing sanctioned strength and that too without following the provision of the Act prescribing certain mode of appointment. The employer, therefore in that case being statutory authority bound by its own Act, Rules and Regulation was found to be in a piquant situation where an employment in teeth of Article 14 was sought to be reinstated by also conferring right of reinstatement with full back wages. It was in that context that the Apex Court had circumscribed the power of the Labour Court by referring to the provision of Section 11 A of the Industrial Disputes Act. Here the case is converse. A waiter in a hotel in employment for last 13 years was suddenly shown the door only because he could not or did not report on duties for a few days. When the employee filed a complaint showing that there was no misconduct against him and he was not allowed to resume his duties after recovery from illness, there was no denial to this fact and yet the employer petitioner therefore took the longer course before the Labour Court for all these years by taking a plea of misconduct at the employee and consuming its own time to prove the same. In such a situation the mandate of Section 26(5) of the Act can not be compared with the provisions made under Section 11(A) of the I.D. Act. The Labour Court therefore - 5 - having rightly held that the removal of the employee respondent No. 2 was in flagrant falls of the provisions made under Section 26(2) of the Act had rightly come to a conclusion as with regard to reinstatement and back wages. The question however would be how much the back wages would be adequate for the sustenance of the employee. If the plea of the petitioner is correct that a period of ten years was consumed only by the Labour Court on its own and there being no latches on the part of the petitioner probably the entire onus, by way of payment of full back wages, can not be a fastened against the petitioner. Part of it must be for the bad luck of the employee Respondent no. 2 who was before a Labour Court which consumed a period of ten years in deciding his case. Therefore, this aspect of the matter will have to be gone into by the Labour Court strictly in accordance with the materials on record and if it is found that management petitioner was fully represented on all these dates between 23.8.1989 to 8.12.1999 and the Labour Court was not taking the proceeding either on account of vacancy or it is being occupied in other case, it will scale down the amount of back wages to 50% but if it is found that it was the delaying contacts of the petitioner himself, it will reiterate the order for payment of full back wages. - 6 - As this Court would find that the petitioner in any event is liable to not only reinstate the employee respondent No. 2 but also to pay 50% of the back wages (as the remand to Labour Court is only for finding out the liability of remaining 50% of the back wages), the petitioner should comply the award of Labour court by reinstating the employee with back wages to the tune of 50% within a period of three months from the date of receipt of production of a copy of this order failing which appropriate action shall be taken against the petitioner. This writ application is accordingly disposed of by modifying the impugned award to the aforementioned extent. Shageer (Mihir Kumar Jha, J)