2025 INSC 218
SUPREME COURT OF INDIA
(HON’BLE
DIPANKAR DATTA, J. AND HON’BLE SANDEEP MEHTA, JJ.)
MAHARASHTRA STATE ROAD
TRANSPORT
Petitioner
VERSUS
MAHADEO KRISHNA NAIK
Respondent
Civil
Appeal No.13834 OF 2024-Decided on 14-02-2025
Labour Law, Industrial Dispute
(A)
Industrial Disputes Act, 1947, Section 2(oo) – Industrial Dispute - Dismissal - Whether, the
Corporation is guilty of suggestio falsi by not disclosing what it had pleaded
before the MACT and suppresio veri by suppressing the said award – Held that
the Corporation indulged in the misadventure of suggestio falsi and suppresio
veri is incontrovertible - Before the
Labour Court, the Corporation did not leave any stone unturned to establish
that not only was the inquiry conducted against Mahadeo fair, but the
conclusion arrived at in course of such inquiry that Mahadeo was guilty of
misconduct in rashly and negligently driving the bus of the Corporation leading
to loss suffered by it was established upon due consideration of the materials
on record - Having regard to the clear and specific stand taken before the MACT
in its written statement, the Corporation did make a false representation
before the Labour Court amounting to suggestio falsi - Also, having not
disclosed before the Labour Court the outcome of the proceedings before the
MACT, a fortiori, that it had not been found liable to pay any compensation to
the passengers who either died and were injured based on what the version in
the written statement was and the argument advanced on its behalf to absolve
itself of any liability, the Corporation is also guilty of suppresio veri -
Issue answered in the affirmative.
(Para 24, 25 and 33)
(B)
Civil Procedure Code, 1908, Section 114; Order 47 Rule 1 – Constitution of
India, Article 226/227 – Review – Validity of - Whether, on facts and in the
circumstances, the single judge was justified in exercising review
jurisdiction? - Section 114 read with Order 47, CPC does permit
the court to look into any document, having a bearing on the lis decided
earlier, which was not on record because despite exercise of due diligence the
same could not be produced by a party - It would invariably reduce to an examination
as to whether the document has such intrinsic worth that if the same had been
produced, the outcome could have been different - The written statement of the
Corporation filed before the MACT and its award are documents of immense
significance which were sufficient to tilt the balance in favour of respondent-‘M’
- The objection of the Corporation to the single judge receiving such document
as evidence in course of exercise of review jurisdiction is wholly without any
substance and merits outright rejection - Issue answered in favour of
respondent. (Para 35 to 37)
(C)
Industrial Disputes Act, 1947, Section 2(oo) – Industrial Dispute – Back wages -Whether any interference with the direction for payment
of full back wages is called for or not – ‘M’ admitted in his counter affidavit
filed before this Court of being engaged in badli work on a daily wage basis -
At the same time, it is his specific case that because his service was
terminated by the Corporation, he could not find a permanent employment elsewhere
- There is no material on record to disbelieve ‘M’ - Since the exact quantum of
wages earned by ‘M’ is not available and at the same time it is clear as
crystal that the Corporation succeeded in its attempt to get rid of ‘M’ by
indulging in the misadventure of suppressio veri and suggestio falsi – Held
that interest of justice would be sufficiently served if, in modification of
the order of the single judge awarding 100% back wages, ‘M’ is awarded 75% of
the back wages from the date of his termination till the date of his
superannuation -This would be apart from ‘M; being entitled to full terminal
benefits, along with interest @ 6% per annum, had he never been dismissed from
service. It is ordered accordingly.
(Para 46 to 49)
(D)
Industrial Disputes Act, 1947, Section 2(oo) – Industrial Dispute – Back wages – Held that ordering
back wages to be paid to a dismissed employee - upon his dismissal being set
aside by a court of law – is not an automatic relief; grant of full or partial
back wages has to be preceded by a minor fact-finding exercise by the
industrial adjudicator/court seized of the proceedings - Such exercise would
require the relevant industrial court or the jurisdictional high court or even
this Court to ascertain whether in the interregnum, that is, between the dates
of termination and proposed reinstatement, the employee has been gainfully
employed - If the employee admits of any gainful employment and gives particulars
of the employment together with details of the emoluments received, or, if the
employee asserts by pleading that he was not gainfully employed but the
employer pleads and proves otherwise to the satisfaction of the court, the
quantum of back wages that ought to be awarded on reinstatement is really in
the realm of discretion of the court - Such discretion would generally
necessitate bearing in mind two circumstances : the first is, the employee,
because of the order terminating his service, could not work for a certain
period under the employer and secondly, for his bare survival, he might not
have had any option but to take up alternative employment.
(Para 43)
(E)
Industrial Disputes Act, 1947, Section 2(oo), 17B – Evidence Act, 1872, Section
106 – Industrial Dispute – Back wages – Gainful employment – Burden of
proof - In certain decisions, noticed in Deepali Gundu
Surwase (supra), it has been opined that whether or not an employee has
been gainfully employed is within his special knowledge and having regard
to Section 106 of the Evidence Act, 1872, the burden of proof is on
him - What is required of an employee in such a case? - He has to plead in his
statement of claim or any subsequent pleading before the industrial
tribunal/labour court that he has not been gainfully employed and that the
award of reinstatement may also grant him back wages - If the employee pleads
that he was not gainfully employed, he cannot possibly prove such negative fact
by adducing positive evidence - In the absence of any contra-material on
record, his version has to be accepted - Reference in this connection may be
made to Section 17-B of the Act, 1947, which confers a right on an
employee to seek “full wages last drawn” from the employer while the challenge
of the employer to an award directing reinstatement in a higher court
remains pending - There too, what is required is a statement on affidavit
regarding non-employment and with such statement on record, the ball is in the
court of the employer to satisfy the court why relief under such section ought
not to be granted by invoking the proviso to the section - See no reason why a
similar approach may not be adopted - After the employee pleads his
non-employment and if the employer asserts that the employee was gainfully employed
between the dates of termination and proposed reinstatement, the onus of proof
would shift to the employer to prove such assertion having regard to the
cardinal principle that ‘he who asserts must prove’ - Law, though, seems to be
well settled that if the employer by reason of its illegal act deprives any of
its employees from discharging his work and the termination is ultimately held
to be bad in law, such employee has a legitimate and valid claim to be restored
with all that he would have received but for being illegally kept away from
work.
(Para 44)
(F)
Words and phrases -
Latin phrases suggestio falsi and suppresio veri - It embody
concepts of unethical conduct of a party having serious consequences in various
fields including law - According to Black’s Law Dictionary [11th Edition], suggestio falsi is a false representation
or a misleading suggestion while suppresio veri connotes
suppression of the truth; an indirect lie, whether by words, conduct, or
artifice - It is a type of fraud.
(Para 22 and 23)
JUDGMENT
Dipankar Datta J.:-
THE
APPEAL
1.
This appeal by the Maharashtra State Road Transport Corporation [Corporation] , by special leave,
is directed against the judgment and order dated 30th November 2018[impugned order] of Hon’ble S.C.
Gupte, J. [single judge] of the
High Court of Bombay[High Court] allowing a petition for review [Review Petition No. 18 of 2018]
of his earlier order dated 7th February 2017 of dismissal of a writ petition6
instituted by the respondent[Mahadeo] .
The single judge not only set aside the order of dismissal of the writ petition
passed by him but also set aside the award passed against Mahadeo by the 4th
Labour Court at Mumbai[Labour Court] . While
so reviewing, the single judge also directed the Corporation to pay all
benefits and emoluments including back wages to Mahadeo.
2.
The Corporation has taken exception to the impugned order and contends that the
High Court erred in interfering with the decisions of the Writ Court and the
Labour Court in its review jurisdiction.
FACTUAL
MATRIX
3.
The facts emerging from a perusal of the records would reflect that Mahadeo was
appointed by the Corporation as a bus driver on 19th April, 1988. The incident
which formed the genesis of the present proceedings occurred on 10th May 1996.
A lorry coming from the opposite direction collided at about 22.45 hours with a
bus of the Corporation, driven by Mahadeo, resulting in a fatal accident. Two
passengers travelling on the bus succumbed to their injuries while several
others (around ten) suffered injuries. The monetary loss to the Corporation
arising from the accident was calculated at Rs. 45,000/.
4.
As a consequence of this accident, disciplinary action followed against
Mahadeo. Consequent upon an inquiry, the Divisional Traffic Officer[disciplinary authority] dismissed
Mahadeo from service of the Corporation on 27th May, 1997. Aggrieved by his dismissal,
Mahadeo preferred a departmental appeal which proved abortive. The Union of
which Mahadeo was a member, thereafter, raised an industrial dispute.
A reference was made by the Deputy Commissioner of Labour requiring the
Labour Court The Labour Court, upon considering the evidence led and hearing
the parties to the dispute, held that the inquiry conducted was fair[vide preliminary award dated 26th May,
2004] ; the findings of the inquiry officer were not perverse[vide preliminary award dated 9th December,
2005] ; and the punishment inflicted was in proportion to the
misconduct proved; therefore Mahadeo was not entitled to reinstatement in
service. Resting on these findings, the Labour Court answered the reference by
holding that Mahadeo was not entitled to any relief[vide final award dated 16th May, 2006] .
5.
Crestfallen, Mahadeo invoked the writ jurisdiction of the High Court by
applying under Article 226 of the Constitution of India[W.P. 154 of 2007]. The single judge
dismissed the challenge observing that there was enough material before the
Labour Court to support the findings of the Inquiry Officer and hence, no
interference was warranted.
6.
While the reference and then the writ petition was pending, proceedings for
compensation had been initiated by the family members of the deceased and
injured victims of the road accident under the Motor Vehicles Act, 1988[the 1988 Act] before the Motor
Accidents Claims Tribunal at Mumbai[MACT] .
Mahadeo, after becoming aware of the proceedings before the MACT, more
particularly the contrary stand taken by the Corporation where the entire blame
for the fatal accident was laid on the feet of the lorry driver as well as
the award of the MACT dated 9th July, 2004[the
said award], applied for review before the High Court[Review Petition No.18 of 2018]. The review proceeding succeeded
before the High Court, triggering this appeal.
IMPUGNED
ORDER
7.
The single judge, in review, noticed the stand taken by the Corporation before
the MACT that the accident was entirely due to the negligence of the lorry
driver, who was driving carelessly without observing traffic norms. It was
stated before the MACT that the driver of the lorry drove it into the
Corporation’s bus and that no fault could have at all been attributed to Mahadeo
for the accident. Furthermore, in its defence, the Corporation led evidence
before the MACT of the conductor of the bus and a passenger who emphatically
stated that the lorry driver was completely at fault for the accident. The
single judge noticed the fact that the proceeding before the MACT culminated
into an award for compensation in favour of the claimants therein, where the
MACT recognising the fact that the lorry driver was at fault, did not affix any
liability on the Corporation. Based on the pleadings and the evidence presented
by the Corporation, the MACT categorically held that the accident took place
because of the negligence of the lorry driver.
8.
It became clear to the single judge that such relevant evidence was suppressed
before the Labour Court. This material, in the opinion of the single judge, had
a crucial and conclusive bearing on the case before the Labour Court.
9.
The single judge relied on a decision of this Court reported in Associate
Builders v. Delhi Development Authority[2015
(3) SCC 49], where it was held that disregard of a vital piece of evidence
is one of the factors to be considered while examining whether an order is
perverse. The single judge further held that if the material produced before
the MACT had been produced before it, the Labour Court would have reached a
diametrically opposite conclusion than the one it reached in the present case.
10.
The Corporation contended that a conclusion reached by a claims tribunal under
the 1988 Act is not binding on the Labour Court, with which the single judge
agreed. However, the single judge held that the Corporation had admitted in a
sworn pleading that the accident was not due to the negligence of Mahadeo. This
newly produced material, which existed when the Labour Court made its award and
the order dismissing the writ petition was made, could not be produced by
Mahadeo, yet, it was of such a clinching nature that on the face of this
material, no court could come to the conclusion that Mahadeo was rightly
dismissed from service due to gross negligence on his part amounting to
misconduct.
11.
Mahadeo pleaded his inability to produce this material before as he only became
aware of the proceedings before the MACT in June, 2017 and received the
certified copies of the materials by 23 rd June 2017. This was neither
challenged by the Corporation before the single judge nor was it shown that
Mahadeo, despite being aware of the proceedings before the MACT, went into
slumber.
12.
Hence, recording satisfaction that a case for review had been set up, the
single judge proceeded to observe that no useful purpose would be served by
remanding the matter to the Labour Court as the materials spoke for themselves
and no case of negligence could be made out against Mahadeo by the Corporation.
Consequently, the Corporation suffered an order for payment of all benefits and
emoluments including back wages on the basis of continuous service of Mahadeo
from the date of his wrongful termination till his superannuation. Since
Mahadeo had attained the age of superannuation, reinstatement was denied.
13.
The writ petition, thus, stood allowed on review of the earlier order of
dismissal.
CONTENTIONS
OF THE PARTIES
14.
On behalf of the Corporation, exception is taken to the impugned order on the
following grounds:
(i) Mahadeo was a
trained driver who was responsible for the safety of the passengers travelling
in the bus. It is a fact that there was extensive damage to the bus and
its passengers by the lorry and even though Mahadeo might have swerved to avoid
the collision, there was a massive impact on account of the high speed of the
bus. To bolster this submission, the Corporation relied on a decision of this
Court in T.N. State Transport Corpn. (Coimbatore) Ltd. v. M.
Chandrasekaran[(2016) 16 SCC 16] where
it was held that the injuries caused to the passengers and the nature of impact
raises an inference that the bus was being driven negligently by the bus
driver.
(ii) The proceedings
before the MACT and the disciplinary proceedings stand on completely different
footing. The disciplinary proceedings were aimed at examining the role of
Mahadeo in the collision, whereas the MACT proceedings aimed to determine the
negligence of the drivers involved in the collision.
(iii) Judicial review
is limited to analysis of the decision-making process and the High Court could
not have ventured into the correctness of the decision itself. Once it has been
established that no ground for review was made out on the aspects of fairness
and propriety of the inquiry, the High Court should not have interfered with
the decision of the Labour Court.
(iv) The single judge
has substituted its view in the place of the competent authority and erred in
not remanding the matter to the Labour Court.
(v) Full back wages
have been awarded to Mahadeo without any evidence that he was not gainfully
employed during the period from his termination to his superannuation. The
single judge erred in ignoring the fact that Mahadeo had a blemished service
record, and several punishments had been meted out to him during his short
service period. Reliance has been placed on the decision Rajasthan State
Road Transport Corporation, Jaipur v. Phool Chand[(2018) 18 SCC 229] to contend that it is settled law that
back wages are not automatic even if termination is set aside; hence, the
single judge erred in not supplying reasons for award of full backwages.
15.
Mahadeo, supporting the impugned order, advanced the following arguments:
(i) The Corporation
has indulged in committing fraud on the Court, by not disclosing the fate of
the judicial proceedings before the MACT and the pleadings filed therein, to
obtain favourable orders.
(ii) Mahadeo has been
fighting this legal battle since 1997 and due to dismissal from service, he has
been unable to find any other permanent employment as a driver. He has been
victimised by the Corporation and has suffered irreparable financial loss
due to its condemnable actions.
(iii) The impugned
order of the single judge granting relief is justified having regard to the
decision of this Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyala[(2013) 10 SCC 324], where
this Court has held that if an employee is terminated on the basis on frivolous
allegations in violation of natural justice, that in itself will be ample
justification to award full backwages.
Issues
16.
To our mind, the present controversy tasks us to address four issues. The first
is whether, the Corporation is guilty of suggestio falsi by not disclosing what
it had pleaded before the MACT and suppresio veri by suppressing the said
award. Depending on an affirmative answer to the first issue, the second issue
would be whether, on facts and in the circumstances, the single judge was
justified in exercising review jurisdiction. Again, an affirmative answer to
the second issue would require serious consideration as to whether any
interference with the direction for payment of full back wages is called for or
not. Fourthly and finally, subject to our answers to all the three issues, what
would be the appropriate relief for Mahadeo needs to be considered.
WRITTEN
STATEMENT OF THE CORPORATION BEFORE THE MACT
17.
To answer the above issues, we need to appreciate what was the nature of claim
before the MACT, what precisely was the defence raised by the Corporation to
avoid liability for payment of compensation, and what was the outcome of such
proceedings.
18.
The road accident taking the lives of two young children and causing injury to
several others had given rise to a First Information Report[FIR] . Mahadeo was not named as an accused therein. The
driver of the lorry, involved in such accident, was the sole accused in the
FIR. This fact was known to the Corporation from day one of the accident. The
parents of Nitin Vardekar[claimants] ,
a deceased passenger aged 17 years, had approached the MACT with a claim for
compensation[Application No. 2901/1996]
under section 166 of the 1988 Act, impleading the Corporation[OP – 1] , the owner of the lorry[OP – 2] and the insurer of the
lorry[OP – 3] as opposite
parties.
19.
To contest the claim of the claimants, the Divisional Controller of the Mumbai
Division of the Corporation, Kurla, Mumbai filed the written statement, on
solemn affirmation, for consideration of the MACT. Relevant passages from the
said written statement read as follows:
“4. …..It is true that
when the said S.T. Bus reached at Pen Phata on Mumbai Goa Highway at Nagothane
at about 22:45 hrs on 10.05.1996 at that time one M/Lorry bearing Registration
no. MRL 8226 came from the opposite direction in a very fast speed and in rash
and negligent manner and gave heavy dash to the driver side of the S.T. Bus. It
is also true that due to the said impact, the right side of the S.T. was cut
off and the deceased who was sitting on the right side in the said S.T. Bus
sustained injuries.
5. With reference to
para 22(ii) of the application, this and by the correct side of the road (sic).
The said S.T. Bus was fully under the control of the Bus Driver of this Opp.
Party. When the said S.T. Bus came near Pen Phata, at Nagothane, at that time
one M/Lorry bearing registration no. MRL8226 which was being driven by the
driver of the Opp. Party No. 2, at a fast speed, rashly, negligently and
without any care, caution and proper lookout from the opposite direction of the
S.T. Bus, could not control his vehicle, came on the wrong side of the road and
dashed against the bus very heavily. The impact was so heavy that the right
portion of the S.T. Bus from the driver’s side was tore and the passenger i.e.
the deceased sustained injuries. The S.T. Bus driver, on seeing the M/Lorry
coming towards the bus, tried to save his vehicle to his left side to avoid the
accident. However, as the driver of the Opp. Party No.2 came abruptly in front
of the bus in a rash and negligent manner, it came in contact of the right side
of the S.T. sustained injuries and was removed to the hospital. It will this be
observed that there was no negligence whatsoever on the part of the S.T. Bus
driver, but it was sheer negligence on the part of the driver of the Opp. Party
No. 2 who drove his M/lorry rashly, carelessly and Opp. Party denies that the
accident is of such a nature that it would not have taken place but for the
gross negligence and rashness of the driver of this Opp. Party and puts the
applicants to the strict proof thereof. This Opp. Party further denies that the
driver of the S.T. Bus was rash and negligent while driving the same in as much
as he drove the said vehicle at a high, excessive and improper speed or that he
drove the said S.T. Bus without taking precautions and/or keeping proper
lookout or watch for the traffic and puts the applicant to the strict proof
thereof. This opp. Party further denies that the driver of the S.T. Bus failed
and neglected to apply the breaks and/or failed to apply the breaks efficiently
and/or in sufficient time to avoid the accident or neglected to manoeuvre the
vehicle so as to avoid the accident and puts the applicant to the strict proof
thereof.”
(emphasis
supplied)
AWARD
OF THE MACT
20.
MACT, Mumbai, considering the claim raised by the claimants and the defence of
the Corporation recorded the evidence of, inter alia, a passenger named Anant
Chindarkar [P.W. 2] and the conductor
of the Corporation’s bus named Chandrakant Lokhe [D.W. 1], respectively. On the basis of appreciation of the
materials on record, the MACT proceeded to deliver the said award. We consider
it appropriate to extract relevant passages from the said award hereinbelow:
“2. …Applicant Nos.1
and 2 are father and mother respectively of the deceased Nitin. On 10.5.1996
the deceased was travelling by S.T. Bus No.MH-12-Q-8712. It was going along
Mumbai Goa Highway. At about 10.45 p.m., it reached at Nagothane. At that time,
one Motor Lorry No.MRL-8226 came from the front side in very fast speed and
gave dash to the said S.T. Bus at its’s driver’s side. Therefore, right side of
S.T. Bus was cut off. The deceased was seriously injured and died on the spot.
****
3. Opposite party No.1
M.S.R.T.C. filed written statement Exhibit-8. It’s case is that: The said Motor
lorry came on wrong side of the road and dashed the S.T. Bus heavily. The
accident occurred due to sole negligence of the driver of the said lorry.
****
ISSUES FINDINGS
1) Whether the
Applicants prove that the accident took place due to rash and negligent driving
of Yes vehicle No.MRL-8226?
2) Whether the
Applicants prove that the deceased Yes died in the said accident?
3) Whether the Applicants prove that they are
entitled Yes, to compensation as alleged? Rs.1,40,000/-
****
8. Applicants examined
one Anant Chindarkar as P.W.2 as an eye witness. P.W.2 stated that: On
10.5.1996 he was accompanying the deceased in the said S.T. Bus. Deceased was
sitting on seat No.25. Near Pen fatta, one lorry came from front side and gave
dash to the S.T. Bus. That lorry was in great speed. It hit S.T. Bus as it’s
middle portion of the right side. Therefore right side of the S.T. Bus was
torn. The deceased got injuries on his head and chest. He became unconscious.
Police came on the spot after about 15 to 20 minutes and removed the deceased
to Nagothane Rural Hospital by one private car. P.W.2 and his friends also went
to that hospital. Doctor examined the deceased and declared him dead. Number of
that S.T. Bus is MH-12-Q-8712. Number of that lorry is MRL-8226. ****
10. Opposite party
No.1 M.S.R.T.C. examined one Chandrakant Lokhe as D.W.1. He stated that on
10.5.1996 he was conductor of the said S.T. Bus. Accident happened near
Nagothane Fatta at about 10.45 p.m. Speed of S.T. Bus was about 30 K.M.P.H.
There was vehicular traffic on the road. The S.T. Bus was on the left side of
the road. The said lorry came from front side in great speed and gave dash to
middle portion of right side of S.T. Bus. The accident happened because lorry
came to wrong side of the road. Body of S.T. Bus was torn. The lorry went
further ahead and then overturned. The S.T. Bus was stopped immediately after
the accident. Lorry driver was responsible for the accident.
****
13. …Spot panchnama
Exhibit-23 further shows that: The said truck No. MRL 8226 after giving dash to
the S.T. Bus went towards western side of the road. Then it hit and uprooted
six stones on the kacha road. Thereafter, it went below the road and dashed one
tree. It was standing there facing towards the road. Trucks body is of iron.
Upper side of truck’s cabin was broken and was lying near it. It stopped about
115 feet away from the place of accident. Driver’s side body of the truck was
seen damaged.
****
16. P.W.2 Anant
Chindarkar was one of the passengers in the said S.T. Bus. That fact is not
disputed by the other side. D.W.1 Chandrakant Lokhe was the conductor of the
said S.T. Bus. It is also not disputed. P.W.2 and D.W.1 were, therefore,
supposed to have personal knowledge and experience of the circumstances in
which the accident occurred. Both of them blamed driver of the said lorry for
the occurrence.
****
20. For the aforesaid
reasons I find that the accident took place because of rash and negligent
driving of the said truck No.MRL- 8226. Issue No.1 is, therefore, answered
affirmatively.
****
25. Consequently, the applicants are entitled
to get total compensation of Rs.1,40,000/- (Rs.1,30,000 + Rs.10,000).
Admittedly: Deceased died in the accident in question. The said motor lorry was
involved in it. It was insured with the New India Assurance Co. Ltd., on the
date of the accident. The Opposite party No.2, Ramesh Suryawanshi is owner of
the said lorry. Therefore, I find that Opposite Party No.2 and Insurer are
liable to pay aforesaid compensation of Rs.1,40,000/- to the applicants. Issue
No.3 is answered accordingly.
****
27. Hence, the following order:
ORDER
Application is partly
allowed with proportionate costs. Opposite party No.2 Ramesh Suryawanshi and
the Insurer the New India Assurance Co. Ltd. Both are ordered to pay jointly
and severally Rs.1,40,000 (Rupees One Lakh Forty Thousand Only) to the applicants
alongwith interest at the rate of 6% p.a. From the date of the filing of the
application i.e. 27.8.1996 till payment. It is inclusive of payment
under sec.140 of Motor Vehicles Act by way of No-Fault Liability.
The case against Opposite party No.1, M.S.R.T.C. is
dismissed.”
(emphasis
supplied)
ANALYSIS
AND REASONS
21.
We now proceed to address each of the first three issues, in seriatim, with the
answer to the fourth and final issue being made part of the answer to the third
issue.
22.
The Latin phrases suggestio falsi and suppresio veri embody concepts of
unethical conduct of a party having serious consequences in various fields
including law.
23.
According to Black’s Law Dictionary[11th
Edition], suggestio falsi is a false representation or a misleading
suggestion while suppresio veri connotes suppression of the truth; an
indirect lie, whether by words, conduct, or artifice. It is a type of fraud.
24.
That the Corporation indulged in the misadventure of suggestio falsi and
suppresio veri is incontrovertible.
25.
Before the Labour Court, the Corporation did not leave any stone unturned to
establish that not only was the inquiry conducted against Mahadeo fair, but the
conclusion arrived at in course of such inquiry that Mahadeo was guilty of
misconduct in rashly and negligently driving the bus of the Corporation leading
to loss suffered by it was established upon due consideration of the materials
on record. Having regard to the clear and specific stand taken before the MACT
in its written statement, which has been quoted above, the Corporation did make
a false representation before the Labour Court amounting to suggestio falsi.
Also, having not disclosed before the Labour Court the outcome of the proceedings
before the MACT, a fortiori, that it had not been found liable to pay any
compensation to the passengers who either died and were injured based on what
the version in the written statement was and the argument advanced on its
behalf to absolve itself of any liability, the Corporation is also guilty of
suppresio veri.
26.
The conduct of the Corporation when Mahadeo was struggling to find a foothold
before the single judge in view of the contours of judicial scrutiny of awards
of industrial adjudicators cannot also escape notice. Perhaps, the Corporation
thought that the proceedings before the MACT not having been brought to
the notice of the Labour Court by Mahadeo previously, he was blissfully
ignorant of the same and, therefore, the Corporation would steal a march over
him by not making the appropriate disclosure. The Corporation was caught
off-guard when Mahadeo produced the written statement and the award of the MACT
before the single judge in his review petition.
27.
The relevance of the MACT judgment and its probative value to the case at hand
cannot be gainsaid. To be relevant, a piece of evidence relied on by a party
must be shown to have some logical connection to the case and its admission
would be necessary to prove or disprove a fact. Once the evidence is found to
be relevant and is admitted arises the question of its probative value.
Probative value, as is well-known, refers to the weight or persuasive power of
the evidence. It is not always necessary that a piece of evidence found relevant
to a case would still demand significant probative value. An assessment has to
be made by the court as to how convincing or persuasive the evidence is and how
effective it would be to prove or disprove a fact.
28.
We are conscious that the law of evidence per se does not apply to industrial
adjudication. Nevertheless, the general principles do apply. In any event, in
industrial adjudication, principles of natural justice have to be complied
with. Fairness in procedure has developed as the third limb of natural justice.
The manner in which the Corporation conducted itself before the Labour
Court does not behove a creature of a statute. It has been far from fair in its
dealings with Mahadeo.
29.
The Corporation did not deliberately refer to the award of the MACT at two
different tiers, and thereby actively suppressed relevant material from a court
of law. We do not propose to enter the arena of controversy as to whether the
award of the MACT is binding on the Labour Court. However, the Corporation could
not have at any rate resiled from what it pleaded in its own written statement
before the MACT on a sworn affidavit and deliberately withhold the same. This
Court has always taken a serious view against suppression of evidence in a
judicial proceeding. In State of M.P. v. Narmada Bachao Andolan[(2011) 7 SCC 639], a three-Judge bench
of this Court observed:
“164. It is a settled
proposition of law that a false statement made in the court or in the
pleadings, intentionally to mislead the court and obtain a favourable order,
amounts to criminal contempt, as it tends to impede the administration of
justice. It adversely affects the interest of the public in the administration
of justice. Every party is under a legal obligation to make truthful statements
before the court, for the reason that causing an obstruction in the due course
of justice ‘undermines and obstructs the very flow of the unsoiled stream of
justice, which has to be kept clear and pure, and no one can be permitted to
take liberties with it by soiling its purity’.”
30.
Even if we keep the award of the MACT aside, it is clear from the pleadings of
the Corporation before the MACT and the Labour Court that the Corporation has
attempted to get the best of both worlds. The contradictory nature of the stances
taken by the Corporation before the Labour Court and the MACT reeks of the
Corporation trying to approbate and reprobate on the same issue. It is bound to
cause immense prejudice to Mahadeo if the Corporation is allowed to reverse its
stance to suit its own interests. This Court in Union of India v. N.
Murugesan [(2022) 2 SCC 25] while
holding that it will be inequitable and unfair if a party is allowed to
challenge a position while enjoying its fruits, ruled:
“26. These phrases are
borrowed from the Scots law. They would only mean that no party can be allowed
to accept and reject the same thing, and thus one cannot blow hot and cold. The
principle behind the doctrine of election is inbuilt in the concept of
approbate and reprobate. Once again, it is a principle of equity coming under
the contours of common law. Therefore, he who knows that if he objects to an
instrument, he will not get the benefit he wants cannot be allowed to do so
while enjoying the fruits. One cannot take advantage of one part while
rejecting the rest. A person cannot be allowed to have the benefit of an
instrument while questioning the same. Such a party either has to affirm or
disaffirm the transaction. This principle has to be applied with more vigour as
a common law principle, if such a party actually enjoys the one part fully and
on near completion of the said enjoyment, thereafter questions the other part.
An element of fair play is inbuilt in this principle.”
(emphasis
supplied)
31.
The Corporation, without an iota of doubt, being in the dominant position has
attempted and achieved success in stealing a march over Mahadeo by indulging in
suggestio falsi and suppressio veri.
The actions of the
Corporation have resulted in Mahadeo being robbed of a stable livelihood and
has caused irreparable harm to him. It would not behove any court, much less
this Court, to allow such free reign to a party. Omission, neglect and/or
failure –whatever be the cause - the Corporation’s non-disclosure of what its
stand was before the MACT and what was ultimately held by the MACT to the
Labour Court as well as the single judge is suppression of such high magnitude
that it can safely be held to be akin to a clear fraud on court.
32.
It also appears to us that the actions of the Corporation were motivated. The
track record of Mahadeo would show that he had been involved in 8 collisions
before the collision with the lorry. Why the Corporation did not get rid of
Mahadeo before is best known to it. However, wanting to get rid of Mahadeo, the
Corporation on this occasion found a convenient excuse in the collision and
went ahead to dismiss him in the most unfair manner.
33.
The first issue is, thus, answered in the affirmative.
34.
Moving on to the second issue, the same need not detain us for long in view of
our answer to the first issue.
35. Section
114 read with Order XLVII, CPC does permit the court to look
into any document, having a bearing on the lis decided earlier, which was not
on record because despite exercise of due diligence the same could not be
produced by a party. It would invariably reduce to an examination as to whether
the document has such intrinsic worth that if the same had been produced, the
outcome could have been different.
36.
The written statement of the Corporation filed before the MACT and its award
are documents of immense significance which were sufficient to tilt the
balance in favour of Mahadeo. The objection of the Corporation to the single
judge receiving such document as evidence in course of exercise of review
jurisdiction is wholly without any substance and merits outright rejection.
37.
Accordingly, the second issue too is answered in favour of Mahadeo.
38.
It is now time to consider the important point of award of back wages.
39.
There is no dearth of judicial precedents on such point. While not referring to
all the precedents, we may notice only a couple of them here.
40. Hindustan
Tin Works (P) Ltd. v. Employees[(1979) 2
SCC 80] is a decision rendered by a bench of three Judges of this
Court. The following passage from the judgment authored by Hon’ble D.A. Desai,
J. (as His Lordship then was) is instructive:
“9. It is no more open
to debate that in the field of industrial jurisprudence a declaration can be
given that the termination of service is bad and the workman continues to be in
service. The spectre of common law doctrine that contract of personal service
cannot be specifically enforced or the doctrine of mitigation of damages does
not haunt in this branch of law. The relief of reinstatement with continuity of
service can be granted where termination of service is found to be invalid. It
would mean that the employer has taken away illegally the right to work of the
workman contrary to the relevant law or in breach of contract and
simultaneously deprived the workman of his earnings. If thus the employer is
found to be in the wrong as a result of which the workman is directed to be
reinstated, the employer could not shirk his responsibility of paying the wages
which the workman has been deprived of by the illegal or invalid action of the
employer. Speaking realistically, where termination of service is questioned as
invalid or illegal and the workman has to go through the gamut
of litigation, his capacity to sustain himself throughout the protracted
litigation is itself such an awesome factor that he may not survive to see the
day when relief is granted. More so in our 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. Articles 41 and 43 of the Constitution would assist
us in reaching a just conclusion in this respect. … “
(emphasis
supplied)
41.
Close on the heels of Hindustan Tin Works (P) Ltd. (supra) came
another seminal decision on entitlement to back wages by another three-Judge
Bench in Surendra Kumar Verma v. Central Govt. Industrial
Tribunal-cum-Labour Court[(1980) 4 SCC
443]. Hon’ble O. Chinappa Reddy, J. (as His Lordship then was) in His
Lordship’s inimitable style remarked:
“6. … Semantic
luxuries are misplaced in the interpretation of ‘bread and butter’ statutes.
Welfare statutes must, of necessity receive a broad interpretation. Where
legislation is designed to give relief against certain kinds of mischief, the
court is not to make inroads by making etymological excursions. ‘Void ab
initio’, ‘invalid and inoperative’ or call it what you will, the workmen and
the employer are primarily concerned with the consequence of striking down the
order of termination of the services of the workmen. Plain common sense
dictates that the removal of an order terminating the services of workmen must
ordinarily lead to the reinstatement of the services of the workmen. It is as
if the order has never been, and so it must ordinarily lead to back wages too.
But there may be exceptional circumstances which make it impossible or
wholly inequitable vis-à-vis the employer and workmen to direct reinstatement
with full back wages. For instance, the industry might have closed down or
might be in severe financial doldrums; the workmen concerned 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.”
(emphasis
supplied)
42.
There have been decisions of this Court rendered thereafter where a shift in
approach on awarding full back wages is clearly discernible. However, a
coordinate bench of this Court in Deepali Gundu Surwase (supra)
considered a dozen precedents on award of back wages upon reinstatement
(referred to in paragraphs 13 and 14). Speaking through Hon’ble G. S. Singhvi,
J. (as His Lordship then was), the legal position was neatly summed up in the
following words:
“22. The very idea of
restoring an employee to the position which he held before dismissal or removal
or termination of service implies that the employee will be put in the same
position in which he would have been but for the illegal action taken by the
employer. The injury suffered by a person, who is dismissed or removed or is
otherwise terminated from service cannot easily be measured in terms of money.
With the passing of an order which has the effect of severing the
employer-employee relationship, the latter’s source of income gets dried up.
Not only the employee concerned, but his entire family suffers grave
adversities. They are deprived of the source of sustenance. The children are
deprived of nutritious food and all opportunities of education and
advancement in life. At times, the family has to borrow from the relatives and
other acquaintance to avoid starvation. These sufferings continue till the
competent adjudicatory forum decides on the legality of the action taken by the
employer. The reinstatement of such an employee, which is preceded by a finding
of the competent judicial/quasi-judicial body or court that the action taken by
the employer is ultra vires the relevant statutory provisions or the principles
of natural justice, entitles the employee to claim full back wages. If the
employer wants to deny back wages to the employee or contest his entitlement to
get consequential benefits, then it is for him/her to specifically plead and
prove that during the intervening period the employee was gainfully employed
and was getting the same emoluments. The denial of back wages to an employee,
who has suffered due to an illegal act of the employer would amount to
indirectly punishing the employee concerned and rewarding the employer by
relieving him of the obligation to pay back wages including the emoluments.”
x x x
38. The propositions
which can be culled out from the aforementioned judgments are:
38.1. In cases of
wrongful termination of service, reinstatement with continuity of service and
back wages is the normal rule.
38.2. The aforesaid
rule is subject to the rider that while deciding the issue of back wages, the
adjudicating authority or the court may take into consideration the length of
service of the employee/workman, the nature of misconduct, if any, found proved
against the employee/workman, the financial condition of the employer and
similar other factors.
38.3. Ordinarily, an
employee or workman whose services are terminated and who is desirous of
getting back wages is required to either plead or at least make a statement
before the adjudicating authority or the court of first instance 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, then
it will have the discretion not to award full back wages. However, if the
Labour Court/Industrial Tribunal finds that the employee or workman is not at
all guilty of any misconduct or that the employer had foisted a false charge,
then there will be ample justification for award of full back wages.
38.5. The cases in which
the competent court or tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the principles of natural justice
or is guilty of victimising the employee or workman, then the court or tribunal
concerned will be fully justified in directing payment of full back wages. In
such cases, the superior courts should not exercise power under Article
226 or 136 of the Constitution and interfere with the award passed by the
Labour Court, etc. merely because there is a possibility of forming a different
opinion on the entitlement of the employee/workman to get full back wages or
the employer’s obligation to pay the same. The courts must always keep in view
that in the cases of wrongful/illegal termination of service, the wrongdoer is
the employer and the sufferer is the employee/workman and there is no
justification to give a premium to the employer of his wrongdoings by relieving
him of the burden to pay to the employee/workman his dues in the form of full
back wages.
38.6. In a number of
cases, the superior courts have interfered with the award of the primary
adjudicatory authority on the premise that finalisation of litigation has taken
long time ignoring that in majority of cases the parties are not responsible
for such delays. Lack of infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants cannot be blamed or
penalised. It would amount to grave injustice to an employee or workman if he
is denied back wages simply because there is long lapse of time between the
termination of his service and finality given to the order of reinstatement.
The courts should bear in mind that in most of these cases, the employer is in
an advantageous position vis-à-vis the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the sufferer i.e. the
employee or workman, who can ill-afford the luxury of spending money on a
lawyer with certain amount of fame. Therefore, in such cases it would be prudent
to adopt the course suggested in Hindustan Tin Works (P) Ltd. v.
Employees [(1979) 2 SCC 80].
38.7. The observation
made in J.K. Synthetics Ltd. v. K.P. Agrawal [(2007) 2 SCC 433] that
on reinstatement the employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of three-Judge Benches referred
to hereinabove [Hindustan Tin Works (P) Ltd. (supra) and Surendra
Kumar Verma (supra)] and cannot be treated as good law. This part of the
judgment is also against the very concept of reinstatement of an
employee/workman.”
(emphasis
supplied)
43.
We cannot but endorse our wholehearted concurrence with the views expressed in
the aforesaid decisions. Taking a cue there from, it can safely be concluded
that ordering back wages to be paid to a dismissed employee - upon his
dismissal being set aside by a court of law – is not an automatic relief; grant
of full or partial back wages has to be preceded by a minor fact-finding
exercise by the industrial adjudicator/court seized of the proceedings. Such
exercise would require the relevant industrial court or the jurisdictional high
court or even this Court to ascertain whether in the interregnum, that is,
between the dates of termination and proposed reinstatement, the employee has
been gainfully employed. If the employee admits of any gainful employment and
gives particulars of the employment together with details of the emoluments
received, or, if the employee asserts by pleading that he was not gainfully
employed but the employer pleads and proves otherwise to the satisfaction of
the court, the quantum of back wages that ought to be awarded on reinstatement
is really in the realm of discretion of the court. Such discretion would
generally necessitate bearing in mind two circumstances : the first is, the
employee, because of the order terminating his service, could not work for a
certain period under the employer and secondly, for his bare survival, he might
not have had any option but to take up alternative employment. It is
discernible from certain precedents, duly noticed in Deepali Gundu
Surwase (supra), that the courts are loath to award back wages for
the period when no work has been performed by such an employee. Such a
view is no doubt debatable, having regard to the ratio decidendi
in Hindustan Tin Works (P) Ltd. (supra), Surendra Kumar
Verma (supra) and Deepali Gundu Surwase (supra). Though the
latter decision was cited before the coordinate bench when it
decided Phool Chand (supra), any thoughtful discussion appears to be
absent.
44.
There is one other aspect that would fall for consideration of the
court. In certain decisions, noticed in Deepali Gundu
Surwase (supra), it has been opined that whether or not an employee has
been gainfully employed is within his special knowledge and having regard
to Section 106 of the Evidence Act, 1872, the burden of proof is on
him. What is required of an employee in such a case? He has to plead in his
statement of claim or any subsequent pleading before the industrial tribunal/labour
court that he has not been gainfully employed and that the award of
reinstatement may also grant him back wages. If the employee pleads that he was
not gainfully employed, he cannot possibly prove such negative fact by adducing
positive evidence. In the absence of any contra-material on record, his version
has to be accepted. Reference in this connection may be made to Section
17-B of the Industrial Disputes Act, 1947, which confers a right on an
employee to seek “full wages last drawn” from the employer while the challenge
of the employer to an award directing reinstatement in a higher court
remains pending. There too, what is required is a statement on affidavit
regarding non-employment and with such statement on record, the ball is in the
court of the employer to satisfy the court why relief under such section ought
not to be granted by invoking the proviso to the section. We see no reason why
a similar approach may not be adopted. After the employee pleads his
non-employment and if the employer asserts that the employee was gainfully
employed between the dates of termination and proposed reinstatement, the onus
of proof would shift to the employer to prove such assertion having regard to
the cardinal principle that ‘he who asserts must prove’. Law, though, seems to
be well settled that if the employer by reason of its illegal act deprives any
of its employees from discharging his work and the termination is ultimately
held to be bad in law, such employee has a legitimate and valid claim to be
restored with all that he would have received but for being illegally kept away
from work. This is based on the principle that although the employee was
willing to perform work, it was the employer who did not accept work from him
and, therefore, if the employer’s action is held to be illegal and bad, such
employer cannot escape from suffering the consequences. However, it is
elementary but requires to be restated that while grant of full back wages is
the normal rule, an exceptional case with sufficient proof has to be set up by
the employer to escape the burden of bearing back wages.
45.
We hasten to add that the courts may be confronted with cases where grant of
lumpsum compensation, instead of reinstatement with back wages, could be the
more appropriate remedy. The courts may, in such cases, providing justification
for its approach direct such lumpsum compensation to be paid keeping in mind
the interest of the employee as well as the employer.
46.
Mahadeo has admitted in his counter affidavit filed before this Court of being
engaged in badli work on a daily wage basis. At the same time, it is his
specific case that because his service was terminated by the Corporation, he
could not find a permanent employment elsewhere. There is no material on record
to disbelieve Mahadeo. Since the exact quantum of wages earned by Mahadeo is
not available and at the same time it is clear as crystal that the Corporation
succeeded in its attempt to get rid of Mahadeo by indulging in the misadventure
of suppressio veri and suggestio falsi, we are of the considered opinion that
interest of justice would be sufficiently served if, in modification of the
order of the single judge awarding 100% back wages, Mahadeo is awarded 75% of
the back wages from the date of his termination till the date of his
superannuation.
47.
The third issue having thus been answered, we are left with the fourth and
final issue.
48.
It is ordered that Mahadeo is entitled to 75% of the back wages from the date
of his termination till the date of his superannuation. This would be
apart from Mahadeo being entitled to full terminal benefits, along with
interest @ 6% per annum, had he never been dismissed from service. It is
ordered accordingly.
49.
The amounts Mahadeo is entitled to in terms of this order shall be released in
his favour by the Corporation within three months from date of its
communication; in default, the said amount shall carry further interest @ 2%
from such default till full payment.
CONCLUSION
50.
With the aforesaid modification of the impugned order, this civil appeal stands
disposed of.
51.
Parties shall bear their own costs.
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