Thuravoor Service Co-operative Bank Ltd v Labour Court Ernakulam and Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945** ## **WP(C) NO. 17302 OF 2009** ## **AGAINST THE ORDER/JUDGMENTID 7/1995 OF LABOUR COURT, ERNAKULAM** ## **PETITIONER/S:** THURAVOOR SERVICE CO-OPERATIVE BANK LTD NO. E. 69, REP. BY ITS PRESIDENT, THURAVOOR P.O.,, ANGAMALY-683 586. BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND ## **RESPONDENT/S:** 1 LABOUR COURT ERNAKULAM AND ANR. ERNAKULAM. 2 P.C.CHUMMAR SO.CHERIAN PALATTY KOONATHAN HOUSE,, THURAVOOR P.O., ANGAMALY-683 586. BY ADVS. PAULSON C.VARGHESE C.V.VEENA SRI. ARUN AJAY SANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C) NO. 17302 OF 2009** ## JUDGMENT 1. Award dated 25.6.2008 rendered in I.D No.7/95 ordering the reinstatement with full backwages is under challenge. 2. Respondent workman while working as an Accountant in the petitioner Co-operative Society along with the Secretary and the Cashier was served with a charge sheet on the allegation that while extending the gold loan had actually not taken the security ie., gold. Dissatisfied with the reply pursuant to the charge sheet, an enquiry officer was appointed. In the meantime, petitioner management had also submitted a complaint to the police and the documents were taken into the custody of the police. Before the enquiry officer, management could not place on record the material but did not also make any application for summoning the records from the police. Despite that the Enquiry officer found that the charges levelled against the workman had been proved. The disciplinary authority after complying with the due procedure, the service of the respondent was dismissed. The aforementioned dismissal was assailed before the labour court vide ID No.7/95. Labour court rejected the claim of the workman and found that the enquiry was perfectly legal and justified. The matter was taken to this Court in O.P No.20387/99. 3 **WP(C) NO. 17302 OF 2009** 3. This court vide judgment dated 8.3.2006 relegated the matter to the labour court. It is in that background labour court has ordered the reinstatement with backwages. 4. Learned counsel appearing on behalf of the petitioner submitted that the claim petition is bereft of the particulars with regard to the gainful employment and this fact has not been examined by the labour court and therefore the order is no sustainable in view of the law laid down by the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Others, (2013) 10 SCC 324 . Petitioner by this time had already attained the age of superannuation. 5. On the other hand, learned counsel appearing on behalf of the workman supported the award on the ground that this Court had already observed in the judgment that the conduct of the enquiry officer in proving the charges was in the absence of the documentary evidence. In that background labour court passed the order in favour of the respondent workman. Respondent workman at the time of dismissal was drawing the salary of Rs.3100/- and did not deny the factum of superannuation. 4 **WP(C) NO. 17302 OF 2009** 6. I have heard the learned counsel for the parties and appraised the paperbook. The claim petition Ext.P2 reveals that there is no averment with regard to gainful employment during the period, he remained out of service nor such statement was made at the time as the testimony before the labour court. The law with regard to the granting of backwages viz-a-viz the pleadings qua gainful employment is no loner res integra in view of the ratio of decidendi culled out in the judgment cited, supra. Paragraphs 38 of the judgment reads thus: 33. The propositions which can be culled out from the aforementioned judgments are: 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 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 5 **WP(C) NO. 17302 OF 2009** 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 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. 6 **WP(C) NO. 17302 OF 2009** 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. 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. 7. The petitioner management thus did have chance tonrebut the same. Thus in my view, the award of the labour court awarding the backwages is not sustainable and hereby set aside. 8. As far as the contention of the petitioner for remanding the matter back with a permission to lead fresh evidence, I am of the view that it is too late in a day to make such request as it is the third round of litigation at the behest of either of the parties as noticed above. I am of the view that the labour court rightly set aside the enquiry and found that the 7 **WP(C) NO. 17302 OF 2009** respondent workman was not at fault but I cannot be oblivious the fact by this time, the workman had already attained the age of superannuation and therefore instead of ordering reinstatement, I deem it appropriate to award damages in terms of compensation to the tune of money in view of the law laid down by the Supreme Court in B.S.N.L v. Bhurumal (2014) 7 SCC 177. I thus modify the award of the labour court viz-a-viz reinstatement, compensation of Rs.9 (Nine) lakhs to be paid to the respondent workman within a period of two months from the date of receipt of a copy of this judgment, failing which it will entail interest at the rate of 6%. Writ petition stands disposed of with aforesaid modification of the award and observations, ibid. Sd/- sab AMIT RAWAL JUDGE 8 **WP(C) NO. 17302 OF 2009** PETITIONER'S EXHIBITS: Exhibit P-1: True copy of enquiry report dated 19/5/1993 Exhibit P-2, true copy of claim statement dated 21/ 3/95 in I.D.No. 7/95 before the Labour Court, Ernakulam,. Exhibit P-3, true copy of written statement dated 28/10/95 filed by the 2[nd] respondent in I.D.No. 7/95. Exhibit P-4, true copy of judgment dated 8/3/06 in O.P.No. 20387/99. Exhibit P-5 true copy of Award dated 25/6/08 passed by the 1st respondent Labour Court in I.D.No. 7/95.