JATI PAL SINGH Vs. INDUSTRIAL TRIBUNAL 5

JUDGEMENT

(1.) The award dated December 20, 1993 passed by Sri R.K. Gupta Presiding Officer, Industrial Tribunal (V) U.P. Meerut in Adjudication case No. 9 of 1981 under Section 4K of the U.P., Industrial Disputes Act, 1947, has been challenged by means of this writ petition.

(2.) Learned Counsel for the petitioner Sri K.P. Agarwal contends that refusal to grant back wages, despite ordering for reinstatement by the learned Industrial Tribunal, is erroneous in law, illegal and cannot be sustained in law. According to him the grant of back wages is a rule when order of reinstatement is passed. Rule can be deviated only in certain exceptional cases where it has been shown that the workman has been employed elsewhere or had made some earning during the period of his enforced idleness or had wilfully refused to seek alternative job or the like and it is for the employer to plead and prove to the satisfaction of the Labour Court such facts. The workman is not required to plead or prove such proof. In support of his contention Mr. Agarwal relied on the decision in the case of Postal Seals Industrial Co-operative Society Limited, Aligarh v. Labour Court (Sic), U.P. Lucknow and Ors., in Special Appeal No. 1139 of 1968 disposed of in the year 1970 and the case of Hindustan Tin Works (P) Ltd. v. Employees of Hindustan Tin Works (P) Ltd. (1978-II-LLJ-474)(SC) According to him the employer had neither pleaded nor proved anything, therefore, there is no scope for the Tribunal to refuse back wages, in the facts and circumstances of the case.

(3.) It appears that the Tribunal had found that the petitioner was guilty of absenting himself from duty for the period June 20, 1979 till July 15, 1979 without any leave and that he did not take steps for obtaining sanction of his leave. He did not report for duty despite letters sent to him by the employer on June 8, 1979 and June 17, 1979. On account of such absence his services were terminated on July 31, 1979. It was also found that he remained absent for the period between May 25, 1979 till June 20, 1979 without any prior sanction of Earned Leave or Medical Leave. The allegation that the workman was on earned leave between May 25, 1979 and June 20, 1979 and had applied for medical leave for the period between June 20, 1979 to July 15, 1979, was found unacceptable by the learned Tribunal. The allegation of victimisation on account of factional rivalries prevailing in the college management, was also not believed. On the other hand it has found that the workman was himself responsible for his negligence for not obtaining sanction of leave and remaining absent from duty without leave. But the order of termination was set aside on the ground that the said termination was effected without giving any opportunity or notice to the workman and without holding any inquiry into the allegations. Though he set aside the order of termination, the learned Tribunal did not award back wages because of the negligence of the workman, who had taken his duty lightly.