Case: Sadanand Patamkar Vs. S New Prabhat Silk Mills

( 3 ) BRIEFLY, the facts leading to these petitions are as follows : One Sadanand Patankar was in the employment of Messrs. New Prabhat Silk Mills No. 2, since the year 1960. By an order dated 30th July, 1967 he was suspended from service and later on 2nd August, 1967 was served with aalleging three acts of misconduct, viz. , (1) that he was found talking and thus whiling away time onat about 6 p. m. (ii) that onhe misbehaved with one of the partners and abused and threatened one Nari Seth, and (iii) that he instigated the workers to stop work from 2nd August, 1967. Theheld an inquiry into the said charges and the enquiry officer in his finding dated the 29th September, 1967, held that the said charges were proved against the employee. As a result of this finding, the employee was dismissed from service with effect from the 29th September, 1967. Thereafter, the employee made an approach to the employer by his letter dated 14th October, 1967 under S. 42 (4) of the Bombay Industrial relations Act, 1946 (hereinafter referred to as the said Act,) and the said approach being of no avail, he filed an application before the Labour Court, being Application No. 7 of 1967, under S. 79 read with S. 42 (4) of the said Act, for reinstatement with full back4 ) IN the said application the Labour Court held that the inquiry conducted by the employer was defective, and, therefore, itself held a fresh inquiry into the charges against the employee. In the said inquiry, the Labour Court came to the conclusion that the charges of misconduct stated at nos. (i) and (iii) in thewere not proved, but the charge No. (ii) was proved. In the result, the Labour Court dismissed the application of the employee, by its order dated the 19th may, 1969.( 5 ) AGAINST the said order of the Labour Court the employee preferred an appeal, being Appeal (I. C.) No. 100 of 1969, before the Industrial Court, Bombay. In the appeal, the employer took a preliminary objection that the appeal was not competent, and also defended, on merit, the order of the Labour Court. The Industrial Court rejected the preliminary objection regarding theof the appeal and on merits held the conclusion of the Labour Court that the second charge of misconduct was proved against the employee suffered from infirmities, and held that there was no reliable evidence to hold that the employee was guilt of the said misconduct. As a result, the Industrial Court by its order dated 19th September, 1969 set aside the order of the Labour Court, and ordered reinstatement of the employee. The Industrial Court, however, held that as the employee had not shown that during all the period of his wrongful dismissal he was not gainfully employed, he was not entitled to any back6 ) IN Miscellaneous Petition No. 806 of 1969 filed by thethe attack is against the order of reinstatement while in Special Civil Application No. 2871 of 1969 filed by the employee, the grievance is against the refusal of back wages.

Reasoning:
8 ) AS regards the attack against the finding of the Industrial Court, that the charge of misconduct was not proved against the employee, it must not be forgotten that the jurisdiction which we are exercising is an extraordinary and discretionary jurisdiction, and unless it is shown that the finding of fact is perverse or unreasonable or is unsupported by any evidence on record, we will not be justified in interfering with the same. The Industrial Court was the final Court of fact, and has arrived at the said finding after appreciating the evidence on record. Mr. Shetye could not show us how the conclusion drawn by the said Court was unwarranted. As an indulgence, we went through the entire evidence on record and satisfied ourselves that the finding of the industrial Court that there was no reliable evidence to prove the misconduct with which the employee was charged, is valid and proper. In the result Mr. Shetyes attack against the said finding must9 ) AS regards the second submission, viz. , that the Industrial Court ought not to have ordered reinstatement of the employee automatically, since the relations between the employer and the employee were strained, Mr. Shetye relied upon three decisions of the Supreme Court. They are : ruby General Insurance Co. Ltd. v. Chopra, [1970I L. L. J. 63]; Hindustan Steels Ltd. , rourkela v. A. K. Roy and others, [1970I L. L. J. 228], and Binny Ltd. v. Their Workmen, [1972I L. L. J.emerges from the aforesaid decisions is that the normal rule, once an order of termination of service is set aside, is to reinstate the employee in service. An employer who claims a departure from this rule must satisfy the industrial adjudicator by producing before him the necessary material in that behalf, that the employee is disentitled to the said normal relief. It is not further enough that the employer makes allegations in his pleadings. The allegations must be justifiable and it is his duty to get the necessary point framed for determination in the adjudication proceedings. When so requested, the industrial adjudicator should set down such point for decision and give opportunity to both the parties to lead the necessary evidence and to contest the same. It is neither fair nor legal to expect an industrial adjudicator to deny the normal relief to a workman on mere allegations and in the absence of the relevant material on record. If an employer fails in his duty to get the necessary point raised for decision, he cannot thereafter be permitted to make a grievance against the relief of reinstatement granted to the15 ) IN the present case, thehad not even pleaded either before the Labour Court or the Appellate Industrial Court that in the event the employee succeeded he should be denied the relief of reinstatement. Much less was any material placed on record before the said authorities to disentitle the employee to the said relief. The contention is that behalf is raised for the first time in this petition. Mr. Shetyes argument that the allegation of misconduct against the employee should be deemed to have stained the relations between the parties, if accepted, will set at naught the right to the security of employment, which the workmen have otherwise come to acquire. For then it will be open for an employer to get rid of an employee, by merely alleging some misconduct against him. The argument, therefore, is merely to be stated to be rejected.Warke, who appears for the petitioner in this petition, has rightly urged that no such point was framed for determination either before the Labour Court or before the industrial Court and consequently the employee had no opportunity to show that he was not gainfully employed during the said period and hence the observation by the Industrial Court that the appellant had not shown that he was during all those years not gainfully employed was unwarranted and without any evidence to that effect on record. In this connection, his submission was that when reinstatement is granted, the relief for payment of arrears of wages should follow as a matter of course. In the alternative, he urged that in any case the employee should be given a proper opportunity to prove that he was not employed during the relevant period in order to entitle him to claim the arrears of wages. In support of his contentions, Mr. Warke relied upon a decision of this Court in Lalit Gopal Berry v. M. V. Hirway, 75 B. L. R. P. 73. As against this Mr. Shetye who appears for theurged that the burden of proving that the employee was unemployed during the entire period and that he made diligent efforts to secure gainful employment but did not succeed in his efforts lies upon the employee and it is only if he discharges the burden that the Court is justified in granting arrears of wages. In this connection, he relied upon three reported decisions in Rakeshwar Dayal v. Labour Court, [1962I L. L. J.5]; malik Dairy Farms v. Its Workers Union, [1968II L. L.523], and Bharat Textile Engineering works, Bombay v. Industrial Tribunal (N. A. Athalye), Maharashtra and others, [1966I L. L. J.582], and two unreported decisions of this Court in Special Civil Application No. 2640 of 1970 decided on the 15th April, 1971 and Special Civil Application No. 2823 of 1973 decided on 5th february,28 ) IN the present case, we find a similar situation. Neither the Labour Court, nor the Industrial court had framed the point for determination as to whether the employee was entitled to back wages or not. The employee was not given any opportunity to show that he was so entitled, and in the absence of any material on record either way the Court denied back wages to the employee on the ground that the employee had not (shown) that he was not gainfully employed during the period. In the view which we have taken, therefore, that part of the award will have to be quashed and the matter will have to be remanded to the Labour Court for determination of the question of back wages.