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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
M/s. S.K. International – Petitioner
Versus
Ashok Tanaji Tambe – Respondent
Writ Petition (L) No. 809 of 2023
Decided On : 01-12-2023
Industrial Disputes Act - Termination of Service - Section 2(s) of the Act, 1947 - Summary of Acts and Sections: The court discussed the nature of the duties performed by the employee and the legal provisions under Section 2(s) of the Industrial Disputes Act, 1947, which defines the expression 'workman'. The court emphasized the dominant nature of the duties and the burden of proof on the employer to establish the workman's status. The court also highlighted the legal principles established in various Supreme Court decisions regarding the grant of backwages in cases of illegal termination.
Fact of the Case:
The case involved a dispute over the termination of an employee's services by the employer. The employee was employed as an Engineer - Technical Support and was deputed to provide technical support at a client's site. The employer terminated the employee's services on the grounds of moral misconduct without holding a disciplinary inquiry.
Finding of the Court:
The court found that the termination of the employee's services was illegal and arbitrary, as the employer failed to establish the alleged misconduct and did not conduct a proper enquiry. The court also noted the inconsistent stands taken by the employer regarding the termination.
Issues: The issues included the nature of the employee's duties, the legality of the termination, the entitlement to reinstatement with backwages, and the burden of proof regarding the employee's gainful employment post-termination.
Ratio Decidendi: The court emphasized the dominant nature of the employee's duties to determine workman status and highlighted the burden of proof on the employer to establish the workman's status and the grounds for termination. The court also considered the principles governing the grant of backwages in cases of illegal termination, including the length of service, nature of misconduct, and the employer's capacity to pay.
Final Decision: The court partly allowed the petition, confirmed the reinstatement of the employee with continuity of service, and modified the award to grant 70% of backwages computed at the last drawn wages instead of full backwages ordered by the Labour Court.
JUDGMENT :
N.J. JAMADAR, J.
1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, heard finally.
2. This petition assails the legality, propriety and correctness of an Award passed by the learned Presiding Officer, Labour Court at Mumbai in Reference (IDA) No. 32 of 2020 dated 12 July 2022, whereby the Reference was answered in the affirmative and the Petitioner No. 1 - first party employer, was directed to reinstate the Respondent - second party employee in service with continuity of service and full back wages w.e.f. 24 April 2019.
3. Shorn of superfluities, the background facts leading to this petition can be stated as under:
3.2 Respondent No. 1 was employed as an Engineer - Technical Support by the Petitioner No. 1 under an appointment letter dated 6 May 2014. In terms of the letter of appointment, Respondent No. 1 was deputed to the site of the Petitioner No. 1’s client Barclays Bank LLP (Barclays Bank).
3.3 The Petitioners assert, the Respondent No. 1 was to work at Barclays Bank to manage data mainly to install, move, add and change the server, hardware, break fix, asset management and inventory management etc. through the team of employees supplied by the Barclays Bank and the Petitioners. The Respondent No. 1 was called back from the work site of Barclays Bank with effect from 16 April 2019 and was asked to sit in the office of the Petitioners until the next assignment on account of moral misconduct on the part of the Respondent No. 1. Asserting that the Respondent No. 1 was relieved at his instance, the Petitioners issued reliving order dated 24 April 2019 and, thereby purported to terminate the services of the Respondent No. 1 with effect from 23 April 2019.
3.4 Alleging unfair labour practice and victimization, the Respondent No. 1 initially called upon the Petitioners as well as M/s. Barclays Bank to reinstate him in service with continuity of service and consequential benefits, including the arrears of wages.
3.5 As the Petitioners vide Reply dated 20 June 2019 contested the claim of the Respondent No. 1 for reinstatement in service, the Respondent No. 1 raised an industrial dispute. Thereupon, the Deputy Commissioner of Labour made a Reference under Section 12(5) of the Industrial Disputes Act, 1947 (the Act of 1947) to the Labour Court to decide the dispute about the alleged illegal termination of the services of the Respondent No. 1 and his entitlement for reinstatement in service with continuity of service and full backwages with effect from 24 April 2019.
3.6 The Respondent No. 1 filed a statement of claim and sought, inter-alia, reinstatement in service with continuity of service and full backwages. The Petitioner No. 1 filed written statement and resisted the claim of the employee. The learned Presiding Officer, Labour Court, recorded the evidence of the employee and Ms. Shraddha Helinge, Executive HR, on behalf of the Petitioners-employer.
3.7 After appraisal of the pleadings, evidence adduced and documents tendered for her perusal, the learned Presiding Officer was persuaded to answer the Reference in the affirmative holding, inter-alia, that the Respondent No. 1 – Second party was a workman within the meaning of Section 2(s) of the Act, 1947; that the services of the Respondent No. 1 were illegally terminated by the first party-employer and the Respondent No. 1 was, thus, entitled for reinstatement in service with continuity of service and full backwages with effect from 24 April 2019.
3.8 Being aggrieved by and dissatisfied with the impugned Award, the Petitioners- employer have invoked the writ jurisdiction.
4. I have heard Mr. Kamat, learned Senior Advocate appearing for the Petitioners-employer and Mr. Omkar Paranjape, learned Counsel for
The dominant nature of the employee's duties determines workman status, and the burden of proof lies with the employer to establish the grounds for termination. The grant of backwages in cases of ill....
workman has retired from the services and, therefore, whatever benefit is available to the workman, after her retirement, needs to be granted to her due to the order of reinstatement with continuity ....
The burden of proof of the employee's unemployment during the interregnum period lies with the employee, and the initial onus is on the employee to plead and prove that he was not gainfully employed.....
The burden of proof lies on the employer to establish the voluntary nature of the workman's resignation, and the court emphasized the principles governing the payment of back wages.
In cases of wrongful termination, the standard remedy is reinstatement with back wages unless the employer proves the employee's concurrent gainful employment during the termination period.
In cases of wrongful termination, reinstatement with back wages is the normal rule unless the employer proves the employee was gainfully employed during the termination period.
The employer bears the burden of proving that the worker was gainfully employed during the dispute period to deny back wages; failure to provide evidence supports the worker's claim to back wages.
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