The burden of proof lies on the dismissed employee to demonstrate unemployment to claim backwages, and the Tribunal must consider all relevant evidence before making an award.

JUDGMENT :

PARTHA SARATHI SEN, J.

1. By filing the instant writ petition the writ petitioner has prayed for issuance of appropriate writ for quashing and/or cancelling and/or setting aside the award dated 19.11.2009 as passed by the 5th Industrial Tribunal, West Bengal (hereinafter referred to as the said ‘Tribunal” in short).

2. While passing the impugned award the said Tribunal directed the writ petitioner/company to pay backwages to the private respondent no.3 to the extent of 80 per cent from the date of dismissal from service to the date of his superannuation after deducting the amount already paid.

3. Before adverting to the rival contentions of the contending parties some admitted facts are required to be looked into and those are stated hereinbelow in seriatim:-

i. The private respondent no.3 was at all material time an employee of the writ petitioner/company at its unit at Kalamazuu Works in Kolkata and he was posted there as a workman.

ii. On 13.01.1982 the private respondent no.3 was served with a charge sheet with a direction to submit his written explanation within 48 hours.

iii. On 27.01.1982 the private respondent submitted his reply with the acting factory manager, Kalamazuu Works of the writ petitioner/company.

iv. The writ petitioner/company being the employer was not satisfied with the explanation given by the private respondent no.3/ delinquent and accordingly initiated enquiry against him.

v. In the enquiry proceeding the respondent no.3/delinquent was found guilty of the charges as framed against him.

vi. By a memo dated 20.05.1982 the writ petitioner/company dismissed the respondent no.3 from service.

vii. On 19.07.1985 Assistant Secretary to the Government of West Bengal, Labour Department made a reference to the said Tribunal in exercise of its power under Section 10 read with Section 2A of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act of 1947 in short) and while making such reference the following issue has been framed:-

“Whether dismissal from service of Shri Bimal Kumar Dutta is justified? What relief, if any, is he entitled to?”

viii. During the pendency of the reference the said Tribunal by its order dated 21.07.2008 came to a finding that the domestic enquiry proceeding as conducted by the writ petitioner/company is invalid and accordingly the said Tribunal proposed to hear out the said reference on merit.

ix. The order dated 21.07.2008 was challenged by the writ petitioner/company by filing WP no.26200 (W) of 2008 and by an order dated 30.01.2009 a Co-ordinate Bench dismissed the said writ petition.

x. After recording evidence of PW1 and OPW1 the said Tribunal passed the aforementioned award which is impugned in this writ petition.

4. In course of his argument Mr. Dey duly assisted by Mr. Sharma, learned advocate for the writ petitioner at the very outset draws attention of this Court to Section 2 (oo) of the said Act. It is submitted that as per Section 2(oo) ‘dismissal’ does not come under the purview of ‘retrenchment’. Attention of this Court is also drawn to Section 11A and Section 25 F of the said Act. It is contended by Mr. Dey that the said Tribunal while passing the award has failed to consider that the unit in which the respondent no.3 was employed was closed long back and all the workmen who were engaged there had taken voluntary retirement. It is thus contended by Mr. Dey that since the very unit where the respondent no.3 was working has been permanently shut down the said Tribunal while passing the award ought not to have directed the writ petitioner/company to pay the backwages as indicated hereinabove.

5. In his next fold of submission Mr. Dey draws attention of this Court to the charge sheet as submitted against the delinquent, the reply of the private respondent no.3 against such charge sheet, the evidence adduced by PW1 and OPW1 before the said Tribunal. It is argued by Mr. Dey that the said Tribunal while passing the award did not consider the material evidence i.e