L.P.A. No.1296 of 2010 -1- In the High Court for the States of Punjab and Haryana at Chandigarh L.P.A. No.1296 of 2010 (O&M) Date of decision: 21.11.2011 Ranbir Singh .....Appellant Versus Presiding Officier, Industrial Tribunal-cum-Labour Court, Faridabad and another ..Respondents Coram: Hon’ble Mr. Justice M.M.Kumar Hon'ble Mr. Justice Rajiv Narain Raina Present: Mr. Mohak Bhadara, Advocate for Mr. R.N. Singal,Advocate for the Appellant. Mr. B.B. Sharma, Advocate for respondent No. 2. **** 1. To be referred to the reporters or not ? 2. Whether the judgment should be reported in the digest? **** Rajiv Narain Raina,J. 1. This Letters Patent Appeal has been filed under Clause X of the Letters Patent, 1919 by the appellant management laying challenge to the judgment and order of the learned Single Judge dated 21.5.2010 upholding the award of the Labour Court, Circle-I, Faridabad dated 6.4.2009 upholding the reinstatement but modifying the award from payment of full back wages to none. 2. The brief facts are that the services of the respondent-Workman were terminated on 5.7.2002 after holding an alleged enquiry for misconduct. The reference made by the appropriate Government under L.P.A. No.1296 of 2010 -2- Section 10(1)(c) of the Industrial Disputes Act, 1947 (the Act), came to be registered as Reference No. R//02/2004. The Labour Court in its award found that a charge-sheet Ex. MW-11/3, though placed on the file did not bear the signatures of any officer of the Management. This was admitted by MW-1 in his statement. Several other discrepancies were found in the evidence which included largely material fact that no enquiry report; the corpus of the defence of the management itself, was produced on the record of the Labour Court. The charge in the present case was fraudulent entry into service and forgery. The charge was serious enough to have merited dismissal but it remained unsubstantiated and unproved. In the absence of such vital evidence the Labour Court had no option but to set aside the dismissal/termination order. Reinstatement was ordered with full back wages. Aggrieved by the award the writ petition was filed. 3. The learned Single Judge in the order impugned upheld reinstatement but did not award back wages and to that extent modified the award. The denial of back wages according to the learned Single Judge was for the reason that the workman had not asserted in his demand notice or in any statement before the Labour Court and also in pleadings before the learned Single Judge in the writ petition that he remained unemployed after termination of his services. The learned Single Judge held that the onus was on the workman to prove that he was unemployed and that there was failure on his part to discharge the onus. 4. We have heard the learned counsel for the parties at length and have perused the record produced on the file of the appeal paper book. 5. On an examination of the record as presented before us, we find that in the written statement filed by the management before the Labour Court there was no assertion that the workman is gainfully employed therefore he should not be granted back wages in any case or that in the event on non- L.P.A. No.1296 of 2010 -3- acceptance of plea of upholding the dismissal order on merits, back wages should be denied as the workman has remained gainfully employed during the period of idleness consequent upon the dismissal. 6. We, however, feel, keeping in view the underlying, universal and cardinal principles of the Evidence Act on onus, though the Act does not strictly apply, that the initial burden was on the Management to plead and prove that the Workman was gainfully employed elsewhere. It was only when this was pleaded that it could be said that the Management had discharged its burden for the onus to shift on the Workman to prove to the contrary. The expression ‘gainful employment’ as used in the Act such as Section 17-B has significant meaning. Every employment cannot be taken as gainful employment and where this issue arises the Court would have to examine all relevant factors which deserve to be considered to come to a conclusion one way or the other such as an employer-employee relationship, concrete proof of employment etc. It also appears to us that in writ proceedings a new case cannot be set up for the first time. In that regard we draw support from the decision of Hon’ble the Supreme Court in Harjinder Singh vs. Punjab State Warehousing Corporation 2010(3) SCC 192. In Harjinder Singh’s case the Hon’ble Supreme Court did not accept the contention that a plea of illegal entry into service could be raised for the first time in writ proceedings to deny reinstatement and back wages. The present case involves something akin to illegal entry into service as in the present case the defence was of fraudulent entry into service with the additional charge of forgery, which remain unsubstantiated, therefore, the issue is settled by the Hon’ble Supreme Court in Harjinder Singh’s case and the legal principle laid down therein applies to this case as well as to jurisdiction of the writ court to consider pleas taken for the first time in matters arising out of Labour Courts. L.P.A. No.1296 of 2010 -4- 7. It has been the view of this Court expressed long ago by the Full Bench decision rendered in the case of Hari Palace v. Presiding Officer, Labour Court, 1979 PLR 720 (P&H) holding that where termination is found contrary to the provisions of the Industrial Disputes Act reinstatement would follow with full back wages unless there are reasons necessitating departure. We must record that learned counsel for the respondent Workman relied upon a decision of the Learned Single Judge of the Gujarat High Court in the case of State of Gujarat and Another vs. Chauhan Ramjibhai Karsanbhai reported in 2005 LLR 155 to contend that when termination of a workman is held to be illegal and void ab initio, the appropriate course would be to grant him full wages on his reinstatement when the employer fails to prove gainful employment of the workman during the intervening period. 8. We have given thoughtful consideration to the matter and have reflected on the issue of onus in the present case. We are unable to subscribe to the view propounded by the learned Single Judge on the issue of onus. In the present case neither the burden nor shifting onus fell on the workman in the absence of pleading to the contrary by the Management with regard to employment, gainful or otherwise. The discretion exercised by the Labour Court in granting full back wages normally should not have been tinkered with especially when the issue of gainful employment was not pressed or proved before the Labour Court by the management. There was a faint attempt, however, to raise it as a ground before the writ court in para 15 (j) of the petition where it was stated that the “workman being driver could not possibly remain out of job, therefore, the payment of back wages does not appear to be justified and award be modified accordingly.” We find that para 15 (j) falling in the grounds, the management while assailing the award of the Labour Court, have been verified on legal L.P.A. No.1296 of 2010 -5- advice. There is, therefore, not even a factual averment in the writ petition. The plea is even otherwise conjectural and is based upon supposition / presumption. This cannot certainly be sufficient to shift the onus to workman. We are convinced in any case that the appellant workman could not have been taken by surprise by a new plea taken at the final hearing which he had no occasion to rebut and then to proceed to deny him back wages altogether. 9. We have also pondered as to what should be the just order in respect of back wages in the present case; given that we are inclined, most certainly, to uphold the order of reinstatement. We feel that we ought not to completely negate the order of the learned Single Judge in exercise of equitable jurisdiction qua back wages. Therefore to strike the golden mean while upholding reinstatement it may be just to award 50% back wages ex debito justatiae. We order accordingly and dispose of the appeal with the above modification. No costs. (M.M.KUMAR) (RAJIV NARAIN RAINA) JUDGE JUDGE November 21, 2011 ‘sp’