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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA, J.
Bibhu Bhusan Deb Roy S/o Late Beni Bhushan Deb Roy – Petitioner
Versus
The State of Assam – Respondent
WP (C) No. 1574 of 2017
Decided On : 28-06-2024
INDUSTRIAL DISPUTES - BACK WAGES AND REINSTATEMENT - INDUSTRIAL DISPUTES ACT, 1947, SECTION 33(C)(2) - The court discussed the provisions of Section 33(C)(2) of the Industrial Disputes Act, 1947, which allows a workman to claim money or benefits that are due from the employer. The court interpreted that the claim must be based on a pre-existing right and that the workman must provide evidence of entitlement to the claimed benefits. The court emphasized that the absence of documentation supporting the claim for increments and allowances led to the dismissal of the petition.
Fact of the Case:
The petitioner, reinstated by the Industrial Tribunal with back wages, contested the calculation of back wages, claiming it did not include increments or allowances. The petitioner sought recovery of a significantly higher amount than what was paid, leading to a dispute over the calculation of back wages.
Finding of the Court:
The court found that the Labour Court had correctly dismissed the petition under Section 33(C)(2) due to lack of evidence supporting the claim for increments and allowances. The court upheld the Labour Court's decision, stating that the petitioner failed to provide necessary documentation to substantiate his claims.
Issues: Whether the petitioner was entitled to back wages that included increments and allowances, and whether the Labour Court erred in dismissing the petition under Section 33(C)(2) of the Industrial Disputes Act.
Ratio Decidendi: The court reiterated that claims for back wages under Section 33(C)(2) must be based on existing rights and supported by adequate documentation. The absence of evidence to substantiate claims for increments and allowances justified the dismissal of the petition.
Final Decision: The writ petition was dismissed, affirming the Labour Court's decision to deny the claim for additional back wages due to lack of evidence.
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. M. Nath, learned Senior Counsel assisted by Ms. D.L. Deka, learned counsel for the petitioner. Also heard K.N. Choudhury, learned Senior Counsel assisted by Mr. D. Borah, learned counsel for the respondent no. 2.
2. The petitioner’s case is that pursuant to the order dated 11.02.2013 passed by the Industrial Tribunal, Silchar, Cachar in Reference Case No. 3/2008, the petitioner was reinstated back into service w.e.f. 18.04.1990 with full back wages. However, the petitioner’s grievance is with regard to the calculation made by the respondents while awarding him the back wages, inasmuch as, the same has been calculated on the basis of a petitioner’s basic pay at the time of his termination from service, i.e. @ Rs.390/- per month.
3. The brief facts of the case is that the petitioner was appointed as Junior Operator Grade-III in M/s Schlumberger Asia Service Limited, registered under the Laws of Hong Kong. The petitioner was appointed on 10.07.1988 and on 01.01.1990, he was placed under suspension followed by his termination from service w.e.f. 18.04.1990. The dispute between the petitioner and the respondent no. 2 was referred to the Industrial Tribunal, Silchar, Cachar for adjudication, wherein it was registered as Reference Case No. 3/2008. Reference Case No. 3/2008 was disposed of vide order dated 11.02.2013, by reinstating the petitioner w.e.f. 18.04.1990 and granting him full back wages. Subsequent to the above, the respondent no. 2 paid Rs.4,75,084.70 to the petitioner as full and final settlement of the wages. Being aggrieved, the petitioner approached the Assistant Labour Commissioner for payment of full back wages amounting to Rs.2,26,78,177.30, by taking the stand that the respondent no. 2 did not include any increment/allowance or revision of pay while paying the petitioner Rs.4,75,084.70.
4. The Assistant Labour Commissioner thereafter directed the Certificate Officer, Sivasagar to recover an amount of Rs.2,26,78,177.30 with interest from the respondent no. 2, vide Certificate dated 14.10.2014.
5. Being aggrieved, the respondent no. 2 approached this Court vide WP(C) 6842/2014, praying to set aside the notices and proceedings in Bakijai Case No. 70/2014 initiated on the basis of the said order dated 30.09.2014 issued by the Assistant Labour Commissioner, for recovery of Rs.2,26,78,177.30.
6. This Court disposed of WP(C) 6842/2014, vide order dated 13.02.2015, by holding that it was an admitted position that in the adjudication process made by the Assistant Labour Commissioner, wherein the respondent no. 2 was made liable to pay to the petitioner Rs.2,26,78,177.30, the respondent no. 2 was not associated in the adjudication process. This Court thereafter disposed of the writ petition by setting aside the two notices dated 03.12.2014 issued by the Recovery Officer, Certificate dated 30.09.2014 issued by the Assistant Labour Commissioner and Bakijai Case no. 70/2014. This Court in it’s order dated 13.02.2015 also recorded the fact that the petitioner had undertaken to file an application under Section 33(C)(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as “1947 Act”) with regard to non-payment of the entire back wages.
7. The petitioner thereafter filed a petition under Section 33(C)(2) of the 1947 Act, for recovery and realisation of unpaid back wages and also prayed for computation of the same before the Labour Court, Guwahati. The petition was registered as Case No. 2/2015. Case No. 2/2015 was dismissed by the learned Labour Court, vide Award dated 16.06.2016, by holding that there was no documentary evidence with regard to the petitioner’s claim for field allowance and no specific direction was made with regard to the notional increment payable to the petitioner. Paragraph nos.10, 11 and 12 of the Award dated 16.06.2016 passed in Case No. 2/2015 by the Labour Court is reproduced hereinbelow, as follows:
A workman claiming back wages under Section 33(C)(2) of the Industrial Disputes Act must provide evidence of entitlement to the claimed benefits, and the absence of such evidence can lead to dismissa....
The main legal point established in the judgment is that in the absence of specific directions in the final Award, a workman granted reinstatement with full back wages is entitled to all consequentia....
Employees must actively pursue reinstatement post-award; however, employers' refusal to act can diminish employees' obligations to report for work.
The court emphasized that a delay in seeking relief under Article 226 without sufficient explanation is a ground for dismissal, limiting the High Court's re-evaluative powers in disciplinary matters.
Award of wages for intervening period – Merely because there was interim order/stay of order of reinstatement during pendency of proceedings, employee-appellant cannot be denied back wages/wages when....
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.....
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