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TMI Blog2019 (8) TMI 1727X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant was not guilty of the misconduct he was charged with. 2 On 27 August 1994, the first respondent resolved to appoint another inquiry officer to conduct an inquiry into the charges against the appellant. A former Chief Officer, Shri Sontakke was appointed as an inquiry officer. The appellant objected to the convening of a second inquiry by his letter dated 24 September 1994. The new inquiry officer issued a notice to show cause to the appellant on 26 September 1994. The appellant objected to the appointment. In the meantime, on 10 October 1994 the first respondent called upon the appellant to show cause what action should be taken pursuant to the report of the first inquiry officer. On 8 November 1994, the first respondent inferred that the report of Shri Marathe was not acceptable to the appellant and proceeded with the inquiry under Shri Sontakke. 3 The new inquiry officer submitted his report on 20 April 1995, holding the appellant guilty of misappropriation of funds and defalcation. On the basis of the report of the inquiry officer, a notice to show cause was issued to the appellant to which he submitted his reply. The first respondent then passed a resolution r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il in proceeding with a de novo inquiry was vitiated since no reasons were recorded by the Municipal Council. The High Court held that even if a de novo inquiry was permissible under the rules, no reason was furnished for discarding the report of the first inquiry officer and convening a fresh enquiry. Moreover, the appellant had objected to the appointment of Shri Sontakke as an inquiry officer since he was an ex-officer of the Municipal Council who was occupying quarters allotted to him at the material time. Hence, the High Court held that the removal was illegal. However, the High Court denied back-wages for the period between the date of dismissal and the date on which the appellant attained the age of superannuation. The appellant has been granted his retiral dues on the basis of continuity of service. The judgment of the High Court has not been challenged by the Municipal Council. 8 The view of the High Court that a fresh appointment of an inquiry officer could not have been made without recording reasons why the disciplinary authority disagreed with the enquiry report is correct. This is borne out by the decision of this Court in CSHA University v BD Goyal (2010) 15 SCC 776 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages..." (Emphasis supplied) The Court further clarified that while the payment of full back wages would be the normal rule, there can be a departure from it where n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted." 11 In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the management of the school pursuant to an ex-parte inquiry proceeding. The School Tribunal quashed the termi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se suggested in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] ." 12 In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years. The appellant had been removed from service on 29 June 1996. Considering the lapse of time, reopening the proceedings would not be expedient in the interest of justice particularly when the appellant had, in the meantime, attained the age of superannuation in 2005. Relegating the appellant to a protracted course of action by restoring the proceedings before the disciplinary authority would also not be fair and proper after a lapse of nearly fourteen years since his ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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