The main legal point established in the judgment is that in cases of wrongful termination of service, the employee must prove non-employment to claim back wages, and the employer has the burden to disprove it. The court also emphasized the application of statutory provisions for computation of gratuity and provident fund.

JUDGMENT :

RAJA BASU CHOWDHURY, J.

1. The instant writ petition has been filed, inter-alia, challenging the award dated 23rd August, 2013 passed by the Learned Seventh Industrial Tribunal, West Bengal.

2. Shorn of unnecessary details, the facts are that the respondent no. 3 happens to be an ex-employee of the writ petitioner. It is the petitioner’s case that at the material point of time, the respondent no. 3 was engaged as a supervisor of the cleaning department of the petitioner at its factory at Rishra.

3. In course of employment, by a notice in writing dated 6th October, 1997, it was notified that during the Pujas on 9th October, 1997, 10th October, 1997 and 11th October, 1997, certain departments of the petitioner including the department where the respondent no. 3 was engaged, will be kept functional and that the workmen concerned will be paid one and a half time of the wages for working on paid holidays, in addition to their usual wages paid on holidays. Inasmuch as the respondent no. 3 did not report for duty on the aforesaid three dates despite instruction from his superior without any intimation in that regard, by a written order dated 14th October, 1997, he was locked-out with immediate effect till further notice. Simultaneously, a charge sheet of even date was also issued calling upon the respondent no. 3 to explain within 48 hours from the date of receipt of the charge sheet as to why disciplinary action shall not be taken against him.

4. The relevant clauses of the standing orders were also noted in the said charge sheet. The respondent no. 3 had duly responded to the said charge sheet, by a correspondence dated 27th October, 1997. Subsequently on 26th October, 1998, after a lapse of a year therefrom, on the basis of the reply given by the respondent no. 3 to the charge sheet dated 14th October, 1997, a fresh charge sheet was issued. The charge sheet appears to have been issued in response to a demand made by the respondent no. 3 vide his letter dated 29th August, 1998. The respondent no. 3 had duly responded to the aforesaid charge sheet by his reply dated 7th November, 1998. By such response, the respondent no. 3 had also called upon the petitioner to withdraw the charge sheet and permit him to join duty. Subsequently, however, at the instance of the respondent no. 3, a statutory conciliation proceeding was initiated. Such conciliation having failed, the appropriate Government by an order dated 31st March, 2003 was, inter-alia, pleased to refer the disputes between the parties to the Learned Seventh Industrial Tribunal, West Bengal in terms of Section 10(2A) of the Industrial Disputes Act, 1947 (hereinafter referred to as the “said Act”) by framing the following issues:

“ISSUES

1. Whether refusal by the management to continue to employ Shri Uday shankar Kundu w.e.f. 13.10.1997 is justified?

2. What relief, if any, is the workman entitled to?”

5. Pursuant to and in terms of the order of reference, the respondent no. 3 had filed his written statement, inter-alia, praying therein as follows:

“Under the circumstances the workman humbly prays before the Ld. Tribunal that this Tribunal would be pleased to answer the reference in favour of the workman and would be pleased to pass as Award holding therein that the termination/refusal of employment of the workman Sri Uday Sankar Kundu by the employer Jayashree Insulators unit of India Rayon and Industries Limited is unjustified illegal and void and the workman is entitled to the relief of reinstatement in his employment under the said employer with all back wages with other benefits and/or fringe benefits retrospectively from the date of refusal of service to the date of reinstatement including unpaid wages for the period from 1997-1998 with plus compensation and the interest subsistence allowance as this Ld. Tribunal may deem fit and proper and to pass such order or orders as to this Tribunal may deem fit and proper.”

6. The said proceeding was contested by the writ petitioner by