TRINATH SETHI Vs. COAL INDIA LIMITED

JUDGEMENT

(1.) Heard the learned Advocates appearing for the parties. The two appeals are taken up for analogous hearing. Assailing the judgment and order dated 19th June, 2009 passed by the learned Trial Judge in W.P. No. 2458 of 2003, two appeals have been preferred, one by the writ petitioner seeking relief as to why petitioner would not be entitled to 100% back wages and another appeal, employer Coal India Ltd. which is assailing the portion of the judgment and order of reinstatement and also grant of back wages and cost. Learned Trial Judge set aside and quashed the order of dismissal from service followed by a departmental proceedings on giving proper opportunity of hearing to the delinquent on the reasoning that the charge of impersonation was not proved by producing material witnesses and thereby directed writ petitioners reinstatement in service with 50% back wages for the period spent under dismissal and learned Trial Judge also imposed cost of Rs. 10,000/-. During pendency of appeal, the appellant complied with the order of the learned Trial Judge by allowing reinstatement in service, hence did not press the portion of judgment and order on that issue but proceed to argue in this appeal regarding justification of grant of 50 % back wages and the cost as imposed by the learned Trial Judge. It is the submission of the appellant that the delinquent never pleaded in the writ application or subsequently by amendment of the writ application that he was not otherwise employed during the dismissal period and accordingly did not justify his claim of back wages. It is the further submission that learned Trial Judge while passing the order about entitlement of back wages did not even assign any reason. In fact no reason assigned as to why writ petitioner would be entitled to back wages. Mr. Ganguly, learned Advocate for the writ petitioner/respondent vehemently submits that as he was dismissed wrongfully and illegally and charge was not proved in departmental proceeding, the dismissal order became null and void and in view of finding of the learned Trial Judge on that point, irrespective of the fact that there was no pleading that during dismissal period he was not employed otherwise, became entitled for 50% back wages.

(2.) Considering the aforesaid submission the only point remains for adjudication by us about illegality and validity of the order of 50% back wages. Before doing such it is wise to consider the Apex Court view on that point about grant of back wages. Earlier it was the view of the Apex Court that as soon as order of dismissal is set aside and quashed on any ground either on the breach of constitutional rights or on the breach of procedural laws, reinstatement and back wages is automatic. This view gradually got a change having regard to the change of political philosophy, globalization and industrialisation. The Apex Court intended to see the issue in the angle as to whether the dismissed employee was gainfully employed during the period of dismissal or not or whether he has led any evidence to that effect by shifting the onus to prove that fact upon the delinquent. This change goes to the root of the jurisprudential concept of grant of relief under the heading back wages. In the case of Allahabad Jal Sansthan v. Daya Shankar Rai & Anr., 2005 5 SCC 124 the Court held that in absence of any evidence adduced by the delinquent that he was not gainfully employed otherwise and did not earn any income, order directing payment of 50% back wages will subserve the ends of justice. But said view was tempered with subsequently by another judgment of the Apex Court in the case of Novartis India Ltd. v. State of West Bengal & Ors., 2009 3 SCC 124 by holding inter alia that claim of back wages is not matter of right and it depends on fact of each cases applying the principle of grant of damages. For considering the burden of proof upon the workmen to this effect by adducing evidence that he was unemployed during that period, the Apex Court applied Section 106 of the Evidence Act to identify the issue. In the case of Kanpur Electricity Supply Company Ltd. v. Shamim Mirza, 2009 1 SCC 20the Apex Court held "when order of termination from service is set aside, ordinary relief is reinstatement in service. It does not result entitlement of back wages which is independent of reinstatement." In the case of Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal & Ors., 2010 6 SCC 773the Apex Court further reiterated the position that grant of back wages is not automatic result when dismissal order to be quashed and order of reinstatement to be passed and further stated that even when the termination order is absolutely illegal still then back wages will not be an automatic action when order of dismissal to be quashed. The Apex Court held in that case that grant of compensation only will serve justice. In the case of Ashok Kumar Sharma v. Oberio Flight Services, 2010 1 SCC 142there was wrongful dismissal but back wages was not allowed. Court simply granted compensation. On analysis of the aforesaid judgment passed by the Apex Court following results emerge:

(3.) In the instant case, it appears from the pleading of the writ application that there was no pleading that dismissed employee remain unemployed during the dismissal period and he had no earning otherwise. Even at the final hearing such writ application was not amended to adduce that evidence in the form of affidavit evidence which is admissible as evidence having regard to the Constitution Bench Judgment passed in Barium Chemical case reported in , : 1972 AIR(SC) 591 wherein the Court held that the suit is tried by trial on evidence and writ application is tried by affidavit evidence. Since there was no evidence adduced in the form of affidavit evidence in the writ application, there was no scope to consider the issue by the learned Trial Judge. Besides such learned Trial Judge did not assign any reason as to why the writ petitioner became entitled for 50% back wages. No whisper, no single reason on that score. Reason is the heart and soul of the order and in absence of any reason the order falls. Doctrine of speaking order is now a settled legal position in the justice delivery system. Reliance is placed to the judgments passed in the cases Union of India v. Kartick Chandra Mondal, 2010 2 SCC 422, 'State of Orissa v. Mamata Mahanti, 2011 3 SCC 436', 'State of Uttaranchal v. Aloke Sharma, 2009 7 SCC 647, 'State of Bihar v. Upendra Narayan Singh, 2009 5 SCC 65' , Union Bank v. M.T. Lathieesh, 2006 7 SCC 350' , Vice-chancellor M.D. University v. Jahan Singh, 2007 5 SCC 77' , 'State of Kerala & Ors. v. K. Prasad & Anr., 2007 7 SCC 140' , 'State of Bihar v. Kameshwar Prasad Singh, 2000 9 SCC 94' , 'State of U.P. v. Niraj Avasthi, 2006 1 SCC 667' , 'Jalandhar Improvement Trust v. Sampuran Singh, 1999 3 SCC 494' , 'State of Andhra Pradesh v. S.B.P.V. Chela Pathi Rao,1995 1 SCC 724, 'Faridabad C. T. Scan Centre v. D.G. Health Services, 1997 7 SCC 752' , 'South Eastern Coalfield Ltd. v. State of M.P., 2003 8 SCC 648 and 'Maharaj Krishan Bhatt v. State of Jammu & Kashmir, 2008 9 SCC 24' .