Sreeletha.K v. The President, Thangal Kunju Musaliar College of Engineering Co-operative Society Ltd; The Labour Court, Kollam

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` WA NO. 354 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT IN WP(C) 1621/2021 OF HIGH COURT OF ``` ``` KERALA ``` ## _`APPELLANT/PETITIONER:`_ ``` SREELETHA.K SAROJINI NIVAS, KADANMUKKU, KOLLAM, EAST VILLAGE, KOLLAM-691 001 ``` ``` BY ADV H.VISHNUDAS ``` ## _`RESPONDENTS/RESPONDENTS:`_ ``` 1THE PRESIDENT, THANGAL KUNJU MUSALIAR COLLEGE OF ENGINEERING CO- OPERATIVE SOCEITY LTD NO.Q163, TKM ENGINEERING COLLEGE CAMPUS, TKMC P.O., KOLLAM-691 005 2THE LABOUT COURT, KOLLAM CUTCHERY(PO), KOLLAM-691 013 BY ADV SRI.RAJIT SR GP SRI T K VIPINDAS ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NO. 354 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** ## **Amit Rawal, J.** 1. Appellant-workman was appointed as sales assistant under the 1[st] respondent-management on 01.03.1989. After having put in 30 years of service one fine day on 02.11.2018 was informed that the management had decided to terminate her services and was not allowed to sign in the attendance register. The allegation was that an amount of Rs.69,926/(Rupees sixty nine thousand nine hundred twenty six only) as decided by the Administrative Committee, was not remitted. The said order was assailed before the Labour Court. Jurisdiction of the Industrial Tribunal was sought as per Section 2A(2) of the Industrial Disputes Act. Before the Labour Court, the workman examined herself as WW1 and brought on record Exts.W1 to W4. On the other hand, on behalf of the management secretary was examined as MW1 and brought on record documents Exts.M1 and M7. The claim before the Labour court was two fold ie., reinstatement and full back wages. Learned Labour Court, on analysis of evidence, found that termination was bad in law and ordered for reinstatement but denied the backwages on the ``` WA NO. 354 OF 2021 ``` ``` 3 ``` ground that the workman had not discharged onus that she was jobless during the period she remained out of service. The award of the Labour Court to the extent of denial of backwages was assailed before the Single Bench and Single Bench dismissed the writ petition by assigning following reasons: “2. Heard both sides. I find no infirmity in the impugned Award denying backwages and other attendant benefits as well as continuity in service to the petitioner. Despite repeated queries by this Court, learned counsel for the petitioner was not in a position to point out any evidence regarding the claim of backwages. In this view of the matter, there is no merit in the writ petition. The same is accordingly dismissed.” 2. Learned counsel appearing on behalf of the appellant submitted that onus lies upon the management to prove that the workman was jobless. Workman cannot remain idle as she has to meet both ends as well as to serve the family. That cannot be considered to be any gainful employment for denial of back wages. 3. On the other hand, learned counsel appearing on behalf of the management supported the award of the Labour Court as well as Single Bench and in support of the contention, ``` WA NO. 354 OF 2021 ``` ``` 4 ``` judgment of Supreme Court in **Deepali Gundu Surwase** v. **Kranti Junior Adhyapakmahavidayala and Others** (2013) 10 SCC 324. 4. We have heard the learned counsel for the parties and appraised the paper book. 5. There had been a spate of litigation with regard to the claim of back wages in various courts. Hon’ble Supreme Court in the judgment cited (supra) resolved the controversy by carving out the following principles: “i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid ``` WA NO. 354 OF 2021 ``` ``` 5 ``` payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the ``` WA NO. 354 OF 2021 ``` ``` 6 ``` superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. ``` WA NO. 354 OF 2021 ``` ``` 7 ``` Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. The aforementioned principles are not attracted in the absence of discharge of burden. We do not find any justification in setting aside the award of the Labour Court as well as the judgment of the Single Bench qua denial of backwages. No ground for interference is made. Writ appeal is dismissed. ## **Sd/-** **AMIT RAWAL JUDGE** ## **Sd/-** **C.S. SUDHA JUDGE** nak ``` WA NO. 354 OF 2021 ``` ``` 8 ``` ## _`APPENDIX OF WA 354/2021`_ ``` PETITIONER ANNEXURES ``` ``` ANNEXURE-I ``` ``` TRUE COPY OF THE AFFIDAVIT DATED 04.02.2020 OF APPELLANT AS WW1 I.D.NO.24/2019 BEFORE THE 2ND RESPONDENT ``` ``` ANNEXURE-IITRUE COPY OF THE DEPOSITION OF APPELLANT AS WW1 I.D.NO.24/2019 BEFORE THE 2ND RESPONDENT ``` ``` ANNEXURE-IIITRUE COPY OF THE CHIEF AFFIDAVIT DATED 17.08.2020 OF THE SECRETARY OF 1ST RESPONDENT AS MW1 I.D.NO.24/2019 BEFORE THE 2ND RESPONDENT ``` ``` ANNEXURE-IVTRUE COPY OF THE DEPOSITION OF SECRETARY OF 1ST RESPONDENT AS MW1 IN IS NO.24/2019 BEFORE THE 2ND RESPONDENT ```