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2019 Supreme(Jhk) 1969
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH KUMAR, J.
The Management of Bokaro Steel Employees Co-Operative House Construction Society Ltd, - Petitioner
Versus
Shri Gopal Prasad, represented by General Secretary, Bokaro Steel Mazdoor Union (CITU) - Respondent
W.P. (L) No. 4630 of 2006
Decided On : 19-08-2019
For the Petitioner: Mr. Krishna Murari, Adv. Mr. Rajvardhan, Adv.
Headnote:
Industrial Disputes Act, 1947 - Section 11-A - Article 226 or 136 - Domestic enquiry has been declared not fair and proper as same was in violation of principle of natural justice - On recording of such finding, opportunity has been given to management to justify order of dismissal - For reason best known to petitioner-management, case has not been contested on merit as no evidence has been led justifying order of dismissal - Three witnesses have been produced and some documents has also been produced - Analysing evidence brought on record, Labour Court has recorded the finding that petitioner-Management has failed to prove charge of wilful absenteeism, and accordingly, it has been held that order of dismissal is wholly unjustified –Held, In view of above discussion and judicial pronouncement, present writ petition is partially allowed by modifying Award dated passed in Reference to that extent that concerned employee will be entitled for back wages from date of reference i.e. till date of retirement - To avoid further litigation calculation has been called from employer and from perusal of calculation, it appears that the concerned workman is entitled for back wages to the tune of Rs. 7,05,935/- if calculated from 30.07.1990 - In view of declaration that respondent workman is not entitled for salary from date of dismissal till date of reference this amount will be around 50 per cent - To avoid further litigation between parties, amount is quantified to extent of Rs. 3,50,000/- to be paid by petitioner to concerned employee within two months from today – Appeal Partially Allowed.
1. Heard Mr. Krishna Murari and Rajvardhan, Advs. appearing on behalf of the petitioner.
2. Nobody appears on behalf of the respondent-workman in spite of filing Vakalatnama.
3. The present writ petition has been filed for quashing the Award of the Labour Court B.S. City pronounced on 09.05.2006 in Reference Case No. 20 of 1998, whereby the reference has been answered in favour of the workman ordering reinstatement in service with full back wages from the date of dismissal.
4. Respondent-workman has been employed by the petitioner-Co-operative Society as a Meter Reader on 02.07.1978. On 15.11.1981, he has been assigned the post of Store-cum-Meter Reader and subsequently on the post of Assistant on 05.01.1985. He has been charged for unauthorised absence and holding departmental proceeding he has been dismissed from the service vide order dated 06.01.1990. Against this order of dismissal, Industrial Dispute has been raised which has been referred being Reference Case No. 20 of 1998. The terms of reference is as follows:
“Whether the termination from service of workman Sri Gopal Prasad, Office Assistant, Bokaro Steel Employees Co-operative Construction Society Ltd., by the management at Bokaro Steel Employees Co-operative Construction Society Ltd., Bokaro Steel City is justified? If not what relief workman is entitled to?”
5. The domestic enquiry has been declared not fair and proper as the same was in violation of principle of natural justice. On recording of such finding, opportunity has been given to the management to justify the order of dismissal. For reason best known to the petitioner-management, the case has not been contested on merit as no evidence has been led justifying the order of dismissal. Three witnesses have been produced and some documents has also been produced. Analysing the evidence brought on record, the Labour Court has recorded the finding that the petitioner-Management has failed to prove the charge of wilful absenteeism, and accordingly, it has been held that the order of dismissal is wholly unjustified.
6. On such declaration, the reinstatement with full back wages has been ordered vide Award dated 27.10.2005. This Award has been impugned in the present writ petition.
7. Counsel for the petitioner has submitted that the Labour Court has failed to appreciate the evidence in proper prospective and the finding of no guilt recorded by the Labour Court is not proper. Further assailing the grant of full back wages, statement has been made that the order of dismissal is dated 06.01.1990 while the reference is dated 02.09.1998, and for such delay the petitioner-Management could not be penalised and grant of wages for that period, is not justified.
8. Perused the record, it is admitted position that the petitioner was in the employment of society since year 1978 and he was terminated on 06.01.1990 on the ground of absenteeism. Dismissal on the ground of absenteeism is otherwise disproportionate punishment.
9. In the present case, the domestic enquiry has been declared not fair and proper due to non-observance of principle of natural justice.
10. In view of these facts, this Court finds no infirmity in the Award passed by the Labour Court whereby, it has been declared that the order of dismissal was wholly unjustified.
11. So far back wages is concerned the concerned workman has been dismissed w.e.f. 06.01.1990 while the reference has been made on 02.09.1998. No explanation has been given for such delay. Due to laches on the part of the concerned workman he is not entitled for salary for the period from the date of dismissal till the date of reference.
12. Law relating to back wages has been well explained by the Apex court in the case of Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others reported in (2013) 10 SCC 324 especially para-38, which is quoted herein below:
38. The propositions which can be culled out from the aforementioned judgments are:
38.1. In cases of wron
