LPA No.891 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No. 891 of 2009 in CWP No.7815 of 1993 Date of decision: 12.11.2009 Baldev Singh ....Appellant vs. The Punjab Agro Industries Corporation Limited and other. ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. --- Present: Mr.K.L.Arora, Advocate, for the appellant. -- J.S.KHEHAR,J. The appellant-workman before this Court was appointed as a Store Keeper on 25.9.1978. His services were however dispensed with on 2.6.1979. Despite the aforesaid order of termination, he was again reinstated, and yet again terminated, vide an order dated 9.5.1980. Dissatisfied with the action taken by the authorities, the appellant-workman issued a demand notice assailing the action of the respondent-management. On the failure of conciliation proceedings, the dispute raised by the appellant-workman was referred for adjudication to the Presiding Officer, Labour Court, Union Territory,Chandigarh (hereinafter referred to as “the Labour Court”). The Labour Court answered the reference in favour of the appellant-workman. The Labour Court ordered the reinstatement of the appellant-workman with 50% back wages. The aforesaid award came to be implemented with the reinstatement of the appellant-workman. The LPA No.891 of 2009 2 appellant-workman resumed his duties on 3.2.1986. Despite his reinstatement, the services of the appellant-workman, were again terminated with effect from 21.4.1988. The appellant-workman on this occasion, issued a demand notice dated 29.7.1988. On the failure of the conciliation proceedings, the dispute raised by the appellant-workman was referred for adjudication to the Labour Court vide an order dated 15.9.1989. Yet again, the Labour Court set aside the order of termination. The appellant-workman was directed to be reinstated in service with continuity, and 60% back wages. So as to assail the award of the Labour Court dated 18.2.1993, the appellant-workman filed CWP No.867 of 1985 claiming 100% back wages. The respondent-management also filed CWP No.220 of 1985, assailing the award of the Labour Court dated 18.2.1993. The respondent- management contested the determination rendered by the Labour Court in setting aside the order of termination dated 21.4.1988, as also, the determination of the Labour Court requiring the respondent-management to pay 60% back wages to the appellant-workman. The writ petition filed by the respondent-management was partly allowed by a learned Single Judge of this Court on 16.4.2009. This Court arrived at the conclusion, that the appellant-workman was not entitled to any back wages. It is the instant determination rendered by the learned Single Judge, which is subject matter of challenge at the hands of the appellant-workman. In so far as the issue of back wages is concerned, it was sought to be concluded by this Court ( in its order dated 16.4.2009) that the appellant-workman did not plead before the Labour Court the fact, that he LPA No.891 of 2009 3 was not gainfully employed after his services had been wrongfully terminated by the respondent-management on 21.4.1988. In fact, the appellant-workman was even silent on the issue of his being gainfully employed during the course of his examination-in-chief before the Labour Court./He however had asserted during the course of his cross-examination, that he was “off and on” employed with M/s Friends Property Dealers, and that, he was paid by M/s Friends Property Dealers “off and on.” Based on the aforestated pleadings, filed by the appellant-workman before the Labour Court, as also his own statement when he had himself appeared as a witness before it, this Court arrived at the conclusion, that the appellant- workman had never asserted before the Labour Court, that he had not been gainfully employed (after his services were dispensed with by the respondent-management with effect from 21.4.1988). As a proposition of law, the solitary contention advanced by the learned counsel for the appellant-workman, during the course of hearing of the instant Letters Patent Appeal was, that the declared legal position, at the time when the claim of the appellant-workman was pending before the Labour Court, was, that the onus of proof rested on the shoulders of the respondent-management, and not on the workman who raised a claim under the provisions of the Industrial Disputes Act, 1947. It is therefore submitted, that it was the responsibility of the respondent-management, to assert and establish, by way of pleadings and evidence, that the appellant-workman was gainfully employed, so as to disentitle the workman from the payment of back wages. Despite the aforesaid contention, it is acknowledged by the learned counsel representing the appellant-workman, that the proposition of LPA No.891 of 2009 4 law, as it stands at the present juncture is, that the onus of proof, whether or not a workman is gainfully employed in the first instance rests on the shoulders of the workman, and after the workman has, by his own statement, or otherwise, discharged the aforesaid onus, the burden shifts on the management to prove to the contrary. In other words, the onus of establishing whether or not a workman is gainfully employed first rests on the workman, and then, shifts to the management. Learned counsel for the appellant acknowledges the latest legal position declared by the Apex Court on the subject matter under reference, has been expressed in Novartis India Limited v. State of West Bengal and others (2009) 3 Supreme Court Cases 124. Despite his having acknowledged the aforesaid legal position, learned counsel for the appellant-workman vehemently contends, that in so far as the present case is concerned, the law as it stood declared when the dispute raised by the appellant-workman was pending adjudication before the Labour Court should be taken into consideration to adjudicate the controversy raised by the appellant-workman. In nutshell, the contention of the learned counsel for the appellant is, that since the legal position rested the onus of proof on the management when the proceedings initiated by the appellant-workman were pending before the Labour Court, his claim should be considered on the basis of the aforesaid determination/declaration. In order to buttress his instant contention, learned counsel for the appellant has placed reliance on a decision rendered by the Apex Court in Harsh Dhingra v. State of Haryana, 2002(2) RCR (Civil) 450. Based on the aforesaid judgment, learned counsel for the appellant wishes to buttress his solitary legal contention,namely, that the LPA No.891 of 2009 5 claim of the appellant-workman should be determined on the basis of the principles of law declared by the Apex Court when the matter raised by the appellant-workman, was pending before the Labour Court. We have considered the solitary contention advanced by the learned counsel for the appellant. We are however of the view, that the reference made by the learned counsel for the appellant, to the decision of the Apex Court in Harsh Dhingra's case (supra), does not support the claim of the appellant-workman. In fact, in our view, the conclusion which emerges from Harsh Dhingra's case (supra) is clearly adverse to the interest of the appellant-workman. For our instant conclusion, reference may be made to the determination rendered by the Supreme Court in paragraphs 7 and 8 of the aforesaid judgment. The aforesaid paragraphs 7 and 8 are being extracted hereunder for facility of reference:- “ Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainly and avoidable litigation. By the very object of prospective declaration of law it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation. These principles are enunciated by this Court in Baburam v. C.C.Jacob and others, 1999(3) SCC 362 and Ashok Kumar Gupta and another v. State of U.P. and LPA No.891 of 2009 6 others, 1997 (5)SCC 201.” “ These appeals, therefore, stand allowed to the extent indicated above and declaring that the judgment of the High Court in Anil Sabharwal v. State of Haryana and others (supra) shall be effective from 23.4.1996. In the event of any of the cases any allotment has been cancelled, the same shall be brought in conformity with the order made by us whether those allottees are parties in these proceedings or not. The declaration made by us will have a general application. It is also made clear that allotment orders made prior to 23.4.1996 can be cancelled if they are not made in conformity with the decision in S.R.Dass v. State of Haryana (supra), after following due procedure”. A perusal of the determination rendered by the Apex Court reveals, that the Apex Court has the jurisdiction to declare a proposition of law prospectively, under the principle of prospective overruling. If the aforesaid principle is not invoked, the declaration of law made by the Supreme Court will be applicable irrespective of any restrictions, and will apply to past, as well as, future proceedings. Since in the legal position declared by the Supreme Court in Novartis India Limited's case (supra), the principle of prospective overruling was not invoked by the Supreme Court, it is not possible for us to accept, that the proposition of law declared by the Supreme Court in the aforesaid judgment will be applicable for adjudicating the claim of the appellant-workman on the issue of back wages. Since there is no dispute, that the appellant-workman did not discharge the onus of proof before the Labour Court, so as to establish that he was not gainfully employed after 21.4.1988, we are satisfied, that the learned Single Judge, was fully justified in denying the appellant-workman back wages after his services were dispensed with. LPA No.891 of 2009 7 In view of the above, we find no merit in the instant Letters Patent Appeal, and the same is accordingly dismissed. ( J.S.Khehar) Judge (Mehinder Singh Sullar) Judge November 12, 2009 rk