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2008(7) Supreme 186
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Talwara Coop. Credit & Service Society Ltd. — Appellant
versus
Sushil Kumar — Respondent
Civil Appeal No. 5951 of 2008
[Arising out of SLP (Civil) No. 336 of 2005]
Decided on : 01-10-2008
(b)Industrial Disputes Act, 1947 – Section 11A – The Industrial Courts are required to strike a balance after considering certain relevant factors such as nature of service, the mode and manner of recruitment etc – For the purpose of grant of back wages; one of the relevant factors would be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. (Para 11)
(2005)5 SCC 591; 2008 (6) SCALE 621; (2006) 4 SCC 733; (2006) 5 SCC 173 – Relied upon.
(c)Indian Evidence Act, 1872 – Section 106 – Burden of proof to show that he was not gainfully employed during the period of termination lies on the employee – If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact gainfully employed. (Para 13)
(2006) 5 SCC 173 – Relied upon.
(d)Industrial Disputes Act, 1947 – Section 11A – Back wages – While striking a balance on equity, Industrial Courts should consider as to whether the industry has been sick – If the industry is not in a position to bear the financial burden, an appropriate award, as a result whereof the equities between the parties can be adjusted, should be passed. (Para 14)
Facts of the case :
1. Appellant is a cooperative society. It appointed the respondent on the post of clerk. His services were terminated in the year 1990.
2.Questioning the said order of termination, an industrial dispute was raised. An award was made on 3.11.1995 directing the appellant to reinstate the respondent - workman.
3.Appellant - Society, however, had been suffering losses. The Board of Directors held a meeting on 21.02.1997 wherein a resolution was passed to the effect that the services of some of the employees should be dispensed with. Pursuant thereto or in furtherance thereof, the services of the respondent amongst others were dispensed with on payment of one month’s salary.
4.Yet again, an industrial dispute was raised. The Industrial Tribunal - cum - Labour Court answered the reference in favour of the respondent.
5. A writ petition preferred thereagainst has been dismissed by reason of the impugned judgment.
Finding of the Court:
The Courts below did not consider as to whether the employee had discharged his burden of showing that he was not gainfully employed during the period of termination. The financial condition of the employer was also not considered.
Result : Appeal allowed.
Judgment
S.B. Sinha, J. —
1.Leave granted.
2.This appeal is directed against a Judgment and Order dated 17.08.2004 passed by the Punjab and Haryana High Court in C.W.P. No. 9147 of 2002 whereby and whereunder the writ petition filed by the appellant questioning the validity of an award dated 14.03.2002 directing it to reinstate the respondent - workman with full back wages was dismissed.
3.Appellant is a cooperative society. It appointed the respondent on 1.07.1987 on the post of clerk. His services were terminated in the year 1990. Questioning the said Order of termination, an industrial dispute was raised. An award was made on 3.11.1995 directing the appellant to reinstate the respondent - workman. Appellant - Society, however, had been suffering losses. Till 1996, it suffered a loss of Rs. 18.95 lakhs. The Board of Directors held a meeting on 21.02.1997 wherein a resolution was passed to the effect that the services of some of the employees should be dispensed with. Pursuant thereto or in furtherance thereof, the services of the respondent amongst others were dispensed with on payment of one month’s salary. Yet again, an industrial dispute was raised. By an award dated 14.03.2002, the Industrial Tribunal - cum - Labour Court directed:
“21.Sequal to the findings on above issues, this reference is hereby answered accordingly against the respondents Society and in favour of the workman, to the effect that termination of services of Sushil Kumar was neither in Order, nor justified. He is entitled to reinstatement with full back wages, with continuity and with all other consequential service benefits.”
4.A writ petition preferred thereagainst has been dismissed by reason of the impugned Judgment.
5.Mr. Dinesh Kumar Garg, learned counsel appearing on behalf of the appellant, at the outset drew our attention to an interim Order passed by the High Court on 22.10.2002 which is to the following effect:
“In the meantime, execution of the award shall remain stayed subject to the provisions of Section 17-B of the Industrial Disputes Act.”
6.The learned counsel pointed out that the said Order has been complied with. The contention of the learned counsel is that having regard to the financial position of the cooperative society which was on the verge of closure and furthermore in view of the fact that the respondent - workman was in the services of the cooperative society only for the period 1987-1990 and again from 1995-1997, award of reinstatement with full back wages should not have been passed.
7.It was contended that even if there was a technical violation of the provisions of Section 25F of the Industrial Disputes Act, 1947, as has been held by the High Court, the Industrial Tribunal as also the High Court ought not to have directed reinstatement of the respondent with full back wages.
8.Ms. Shikha Roy Pabbi, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the cooperative society has merged with apex body and the latter has earned a huge profit and in that view of the matter this Court may not exercise its discretionary jurisdiction. It was submitted that even after the termination of services of the respondent - workman, some other workmen had been appointed who were in fact junior to him.
9.The fact that the respondent was employed for a very short time is not in dispute. He admittedly was appointed in 1987 and was in service till 1990. Only on or about 3.11.1995, the award directing reinstatement was passed. The said award has been implemented.
10.Neither the learned Industrial Court nor the High Court arrived at a finding that the resolution passed on 21.02.1997, wherein a total loss of Rs. 18.95 lakhs was shown to have suffered by the cooperative society, was incorrect. It is furthermore not in dispute that rightly or wrongly a decision was taken to terminate the services of some of the employees, pursuant whereto only the services of the respondent had been terminated. The fact that the app
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