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Chandrima Bhattacharya v. Ms/ Scientific Instruments Co. Ltd. And Anr. - WRIT - C No. - 25441 of 1993 [2007] RD-AH 16861 (25 October 2007)

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Court No.35

Civil Misc. Writ Petition No. 25441 of 1993

Smt. Chandrima Bhattacharya


Scientific Instrument Company Ltd. and another

Hon.Shishir Kumar, J.

This writ petition has been filed for quashing the order of the Tribunal, Annexure 1 to the writ petition to the extent as the Labour Court has refused to award back wages to the petitioner.

The petitioner who was an employee, her services have been terminated. She raised an industrial dispute and the Labour Court vide its award dated 27.2.1993 was pleased to quash the order of termination but has refused to grant back wages to the petitioner. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.

I have heard Sri Sameer Sharma, learned counsel for the petitioner and Sri V.R.Agarwal, learned counsel for the respondents.

The petitioner alleges that as she was a permanent employee, therefore, her services cannot be terminated without following the proper procedure under the Rules. Rule 4 of the Company Rules provides that atleast three months notice is necessary if the employer intends to terminate the services of a permanent employee. It has been argued on behalf of the petitioner that once the Labour Court has come to the conclusion that the order of termination is bad and was passed without following the proper procedure as provided in the Industrial Disputes Act, therefore, the petitioner was entitled for back wages. As it has not been given, the limited relief prayed in the present writ petition is to award back wages.

A further submission has been made that there was an understanding that the petitioner will be posted at Allahabad but the award given by the Labour Court is bad to this extent that the employer can accommodate the workman concerned in the headquarter or other places in the establishment according to her qualification.

I have considered the submissions made on behalf of the parties and have perused the record. As regards the accommodation of the petitioner, no employee can claim as a matter of right that he/she may be posted at a particular place. Though from the perusal of the Service Rules and the Standing Orders of the Company it is clear that Clause 7 of the Standing Order provides that all the employees of the Company are liable to the transferred from one office branch or establishment of the Company to another located anywhere in India "at the sole discretion of the Company". The petitioner has signed and agreed to the said terms and conditions, therefore, the petitioner cannot claim that the Labour Court award is bad in law as it relates to the accommodation of the petitioner to any place.

As regards, granting of back wages, it is now settled in law that an employee has to make an application before the Labour Court and a pleading to that effect should be made before the competent authority that he or she was not gainfully employed after the order of termination by the employer. If there is no pleading, then the Labour Court is not bound to record a finding and if the back wages have been denied, the employees concerned cannot claim that the order to that extent refusing back wages is bad in law. In 2005 (5) SCC 124 Allahabad Jal Sansthan Vs. Daya Shanker Rai the Apex Court has held that for grant of back wages it was necessary for the workman to plead and prove that he or she has not obtained any other employment in the interregnum. In 2005 (6) SCC 224, M.L. Binjolker vs. State of M.P., the Apex Court has held that awarding back wages are no longer natural corollary of an order of reinstatement. It would depend upon several factors and the Court has to weigh pros and cons of each case and to take a pragmatic view.

The reliance placed by the learned counsel for the petitioner is upon a judgment of the Apex Court reported in 2006 Vol. 108 FLR 201, U.P. State Brassware Corpn. Ltd. and another Vs. Udai Narain Pandey. Learned counsel for the petitioner submits that in the aforesaid case also the Apex Court has granted 25% of the back wages as it was held that the action against the employee was not in consonance with U.P. Industrial Disputes Act. In the aforesaid case the Apex Court has not laid down a law to the effect that each and every case where there is no pleading or it has not been proved, then as a matter of right if the order of termination or retrenchment has been held invalid by the labour court, the employee is entitled for back wages. In para 31 it has been held "it is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."

In Kendriya Vidyalaya Sangathan Vs. S.C. Verma 2005 SCC (Labour & Service) 207, the Apex Court has held "........when the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to revert the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."

In view of the aforesaid fact, I find that there was no pleading by the petitioner, therefore, refusing back wages by the Tribunal cannot be held to be illegal.

In view of above, I find no illegality in the order passed by the Tribunal. The writ petition is devoid of merits and is hereby dismissed.

There shall be no order as to costs.




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