ORISSA HIGH COURT: CUTTACK W. P.(C) NO.5213 OF 2002 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- The Divisional Forest Officer, Chandaka Wild Life Division, S.F.T.R.I.Campus,Ghatikia, Bhubaneswar. …… Petitioner -Versus- Sri Madan Mohan Sahu and another. …… Opp. Parties For Petitioner : Addl. Standing Counsel For Opp. Parties : M/s. S.K.Bhanjadeo, R.K.Muduli, J.K.Swain, G.R.Ray, A.K.Dalai, P.K. Sahoo (2) & S.Dalai. ----------------------- Decided on 23 .07. 2010. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. Das, J. The Divisional Forest Officer is the petitioner in this writ application challenging the award dated 19.06.2001 passed by the learned Industrial Tribunal, Orissa, Bhubaneswar in I.D. Case No. 30 of 1994. A reference was made by the Government of Orissa in its Labour and Employment Department under sub-section (5) of Section – 12 read with Clause – (c) & (d) of sub-section (1) of Section – 10 of the Industrial Dispute Act, 1947 (hereinafter referred to as ‘the Act’) to which the Industrial Tribunal which was as follows :- “Whether the retrenchment of Sri Madan Mohan Shau, Ex- Forest Guard by the Divisional Forest Officer, Wild Life Division, Chandaka, Bhubaneswar with effect from 8.9.88 is legal and/or justified ? If not, to what relief Sri Sahu is entitled ?” 2. The workman filed his statement of case and the management-petitioner also filed its written statement. The case of the workman is that he was working as a Forest Guard under the management with effect from 01.05.1982 till 08.09.1988, when his services were terminated by the management without assigning any reason. The workman claimed that he has worked continuously under the management for a period of six years and during such period he was transferred to different places. He was never charge sheeted during his employment for any misconduct. It was claimed by him that as he has rendered six years continuous service under the management, it was required on the part of the management to comply with the provisions of Section 25F of the Act before terminating him from service which amounts to retrenchment. The defence set out by the management was that while the workman was working as Forest Guard, he appeared in the written test on 10.08.2008 conducted for recruitment to the post of regular cadre of Forest Guard but he did not qualify in the said test for which no further engagement was given to him. It was pleaded that the 2 workman having become unsuccessful in the test cannot raise an industrial dispute. It was further stated in the written statement that the workman filed Original Application No. 970 of 1989 before the Orissa Administrative Tribunal calling in question his termination from service and non-regularization. The said Original Application was dismissed by the learned Tribunal by a reasoned order and, therefore, the same operates as res-judicata and the workman is not entitled to any relief. 3. Initially an award was passed by the learned Tribunal in favour of the workman which was challenged by the management in O.J.C. No. 17664 of 1997 before this Court. This Court taking note of the judgment passed by the Administrative Tribunal in Original Application No. 970 of 1989 and finding that the Tribunal has not examined the question as to whether the principle of res-judicata is applicable to the facts of the present case or not, set aside the award and remitted the matter back to the Tribunal for fresh disposal with an observation that all the questions raised shall be considered in accordance with law. 4. After remand, the learned Tribunal took up the matter afresh and framed the following issues. “1. Whether the first party-management is an ‘industry’ as defined under the I.D. Act ? 2. Whether the principle of ‘Res-judicata’ applies to the present case in view of the judgment of the Orissa Administrative Tribunal in O.A. No. 970 of 1989 ? 3 3. Whether the retrenchment of the second party-workman by the first party- management w.e.f. 8.9.88 is legal and/or justified ? 4. To what relief, if any, the second party- workman is entitled ?” 5. With regard to the question of applicability of principles of res-judicata for which issue no.2 was framed, learned Tribunal referring to the decision reported in A.I.R. 2002 SC, 997 (C.T. Nikam vrs. Municipal Corporation of Ahmadabad) as well as the decision of Andhra Pradesh High Court reported in 2000 LLR 316 (Commissioner, Ongole Municipality Vrs. Kunchala Sreenu & others) came to the conclusion that the principles of res-judicata does not apply to the facts of the present case specially when the matter before the learned Tribunal was totally different than the issue raised in the industrial dispute. I do not find any error in the analysis of law made by the learned Tribunal in coming to such conclusion. 6. The further contention raised by the petitioner is that the opp. party no. 1 - workman did not work continuously for 240 days in 12 calendar months preceding his retrenchment though it was admitted that the petitioner has been retrenched from service with effect from 08.09.88. The Tribunal addressing itself to issue no.3 as a matter of fact relying upon Exts. 1 to 11 came to the conclusion that the workman has continuously worked from 1982 4 till 08.09.1988 with some artificial breaks and, as such, the provision of Section 25F was required to be complied with before terminating the workman. Though the learned counsel for the petitioner strenuously urged that there has been no violation of Section – 25F of the Act but considering the finding of fact which has been arrived at by the Tribunal by taking into consideration the documentary evidence adduced before him as Exts. 1 to 11, I repel the said contention and confirm the award passed by the learned Tribunal as at Annexure – 1 with regard to reinstatement in service. 7. Now coming to the question with regard to the direction in the award to pay 50% of the back wages to the opp. party no.1-workman, learned counsel for the petitioner submits that it is for the opp. party no.1-workman to show that he was not profitably engaged in the meanwhile for being entitled to any amount towards back wages. Reliance has been placed on the decisions in the cases of Managing Director, Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale (2009) 2 SCC 288, U.P. State Brassware Corpn. Ltd. and another v. Uday Narain Pandey (2006) 1 SCC 479, Kendriya Vidyalaya Sangathan and another v. S.C. Sharma (2005) 2 SCC 363 and Allahabad Jal Sansthan v. Daya Shankar Rai and another 5 (2005) 5 SCC 124 by the learned counsel for the petitioner in support of the above contention. In the case of Kendriya Vidyalaya Sangathan and another (Supra), the Supreme Court while examining the order of the High Court directing payment of full back wages observed in paragraph-16 as follows :- 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 a 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. In the case of Allahabad Jal Sansthan (Supra), on the question of payment of back wages the Supreme Court held that earlier in the event of order of dismissal being set-aside the reinstatement with full back wages was usual result. But now with the passage of time it has come to be realized that industries being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent on productively while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary to develop pragmatic approach to 6 presume dogging industrial relations. Observing thus the Supreme Court in paragraph-17 held as follows:- 17. In view of the fact that the respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he remained unemployed throughout from 24-1- 1987 to 27-2-2001, we are of the opinion that the interest of justice would be subserved if the respondent is directed to be paid 50% of the back wages. In the case of U.P. State Brassware Corpn. Ltd. and another (Supra), with regard to back wages, the Supreme Court in series of earlier decisions, considering the facts of the said case and finding that the workman did not take a plea in his written statement that he was not gainfully employed during the said period, confined the back wages to 25%. Again in the case of Managing Director, Balasaheb Desai Sahakari S.K. Ltd. (Supra), the Supreme Court taking into consideration the earlier decisions held in paragraph-13 as follows :- 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 the 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. v. Uday Narain Pandey held: (SCC pp. 495-96, paras 61-62) 8. Holding thus, in the facts of the said case, the Supreme Court did not grant any back wages and further 7 directed that the amount of Rs. 60,000/- already paid to the respondents shall not be recovered. 9. On analysis of the law laid down by the Supreme Court as above and examining the facts of the present case in the light of the aforesaid decisions, finding that the opp. party no.1- workman immediately after retrenchment approached the Orissa Administrative Tribunal and on dismissal of the said case approached the Industrial Court for redressal of his grievance, it can be safely presumed that the opp. party no.1-workman was not engaged gainfully in the interregnum as it appears that he was continuously pursuing the remedies available under law for reinstatement in service. In such contingencies, even though the learned Tribunal has not assigned any reason as to why 50% of the back wages would be paid to the workman, but I find the said quantification of back wages made by the Tribunal to be just and equitable. Therefore, I also do not interfere with the same. Accordingly, the direction with regard to payment of back wages passed by the learned Tribunal in the impugned award also stands confirmed. 10. In view of the above, the writ petition being devoid of merit is accordingly dismissed. …………………… M.M. Das, J. 8 Orissa High Court, Cuttack. July,23rd , 2010/Biswal. 9 10 11