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2003 DIGILAW 823 (PNJ)

S. Mohinder Singh v. Director, State Transport

2003-05-28

S.S.NIJJAR

body2003
Judgment S.S.Nijjar, J. 1. The petitioner was working as Conductor with the State Transport, Punjab Roadways, Amritsar since 19.4,1977. The Labour Court has however found that he was appointed on 15.5.1977. His services were terminated on 23.1.1978. The workman had completed 240 days during the year preceding the date of termination. The provisions of Section 25-F of the Industrial Disputes Act, 1947 were not complied with. The services of the petitioner were terminated on the ground that his services are no longer required. However, the petitioner had claimed that on 23.1.1978, Bus No. PUE 8824 on which he was working as a Conductor, was checked while it was going from Amritsar to Ludhiana, Inspector Gurmail Singh demanded money from the petitioner. The petitioner did not give the illegal gratification. A false FIR bearing No. 167 was registered against him. The petitioner was put on trial in the Court of Sub Divisional Judicial Magistrate, Pathankot. Vide judgment dated 19.4.1980, the petitioner was acquitted of the charge of theft. After acquittal, the petitioner made a demand for reinstatement vide letter dated 29.5.1980. The request of the petitioner for reinstatement was denied. Thereafter the petitioner served a notice under Section 80 of the Civil Procedure Code. Under the advice of an Advocate, the petitioner filed a civil suit on 1.10.1980 seeking reinstatement. On 14.11.1980, the civil suit was dismissed on the ground that the Civil Court will have no jurisdiction. Consequently the petitioner served a demand notice on 16.1.1981. The reference was made to the Labour Court. 2. Vide its Award dated 11.11.1986, the Labour Court has held that the order of termination is illegal and deserves to be set aside, After setting aside the order of termination, the Labour Court reinstated the workman with continuity of service. However, the workman has been denied the back wages on the ground that the demand notice has not been served till 16.1.1981. 3. I have heard the learned counsel for the parties at length. 4. Mr. Jhingan has argued that the normal rule is that on the workman being reinstated with continuity of service, he has to be paid full back wages. Mr. Sran has however vehemently argued that back wages can only be given from the date when the demand notice is given. 4. Mr. Jhingan has argued that the normal rule is that on the workman being reinstated with continuity of service, he has to be paid full back wages. Mr. Sran has however vehemently argued that back wages can only be given from the date when the demand notice is given. In this case, the demand notice having been given on 16.1.1981, the petitioner would not be entitled to back wages from the date of order of termination dated 23.1.1978. 5. I have considered the submissions made by the learned counsel for the parties. I am of the opinion that the Award of the Labour Court denying the back wages to the petitioner suffers from an error apparent on the face of the record. It is a settled proposition of law that when an order of termination/dismissal is set aside having been held to be illegal and nonest, the workman would become entitled to full back wages unless some justification is given by the Management for making an exception. This view of mine will find support from the Full Bench Judgment of this Court in the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court and Anr., (1981)83 P.L.R. 720. After analysing the legal position, on the basis of principle as well as precedent, S.S. Sandhawalia, Chief Justice, speaking for the Bench has observed as follows:- "5. There is no gain saying the fact that there has been some divergence of opinion in the various High Court on the point earlier. Varing view had been expressed as to where precisely the onus lay with regard to the claim to back wages and also with regard to the striking of the issues or the necessary point for determination thereof by the Labour Court itself. Within this Court, a Division Bench in Daljeet and Co. Private Ltd., Ropar v. The State of Punjab and Ors., A.I.R. 1964 Pb. 313, has held that the dismissed employee is reinstated with continuity of service, the normal relief would be the payment of full wages from the date of dismissal, and it is for the employer to raise this matter and prove that the employee had been earning wages for the whole or any part of the period in question. The aforesaid view has been consistently followed in this Court and reaffirmed in Harbans Singh and Ors. The aforesaid view has been consistently followed in this Court and reaffirmed in Harbans Singh and Ors. v. The Assistant Labour Commissioner and Ors., (1976)78 P.L.R. 221. The Allahabad High Court was inclined to take a similar view in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court, Lucknow, (1971) Lab. L.J. 327, and the same tenor is the judgment of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal, (1971)1 Lab.L.J. 508. 6. However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors., A.I.R. 1979 Supreme Court 75, wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It has been held therein in no uncertain terms:- "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". And again: "Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure". The aforesaid view has been reiterated by their Lordships in G. T. Lad and Ors. v. Chemicals and Fires India Ltd., 1979 Labour & Industrial Cases 298". 6. In view of the aforesaid enunciation of law, it becomes apparent that the matter is concluded in favour of the petitioner so far as the grant of back wages is concerned. 7. The next question that arises, however, is as to whether the benefit of back wages could have been curtailed on account of delay as held by the Labour Court. The Labour Court has denied the back wages from 23.1.1978 till 16.1,1981 by holding that the demand notice was issued on 16.1.1981. According to Mr. Sran, the back wages had been rightly denied in view of the law laid down by this Court in the case of Randhir Singh v. Presiding Officer and Ors., (1995-2) 110 P.L.R. 325. 8. I have perused the Division Bench Judgments relied upon by the learned counsel. I find that the aforesaid authority rather than helping the respondents, is laying down a proposition which, in fact, is in support of the petitioner. 8. I have perused the Division Bench Judgments relied upon by the learned counsel. I find that the aforesaid authority rather than helping the respondents, is laying down a proposition which, in fact, is in support of the petitioner. In paragraph 8 of the judgment, it is observed as under:- "If we see the awards of the Labour Court, no reason is stated as to why the back wages are restricted to 10% only. The fact that reinstatement has been ordered shows that the order of termination of the services of the workmen was unjust and wrong and when this is so the workmen are entitled to full back wages. The workmen whose services had been illegally terminated will be entitled to back wages except to the extent he was gainfully employed during the enforced idleness. It was not the fault of the workmen that they were unemployed during the period enforced idleness. We find no reason, therefore, to justify the restriction of the back wages to 10%. The back wages which will have to be awarded to the workmen should be full back wages. However, we find it fit to pay the back wages from the date of demand notice because the management should not be taxed with the back wages for the period from the date of termination till the date of demand notice." 9. A perusal of the aforesaid observations makes it clear that, in that case, the Labour Court had restricted the wages to only 10%. The Division Bench after considering the matter has categorically held that the workmen whose services had been illegally terminated will be entitled to back wages except to the extent he was gainfully employed during the period enforced idleness. Undoubtedly, it has been held that the back wages have to be paid from the date of demand notice because the Management should not be taxed with the back wages from the period from the date of termination till the date of demand notice. 10. The aforesaid observations are in consonance with the law laid down by the Supreme Court in a catena of judgments. The question of determination in this petition is: Whether the workman could be denied the wages for the period spent by him in the Civil Court. The cause of action arose to the petitioner when he was acquitted, of the criminal charges on 19.4.1980. The question of determination in this petition is: Whether the workman could be denied the wages for the period spent by him in the Civil Court. The cause of action arose to the petitioner when he was acquitted, of the criminal charges on 19.4.1980. So during the period between 23.1.1978 to 19.4.1980, the petitioner could not have served a Demand Notice. He filed the civil suit on 1.10.1980. The plaint was returned to the petitioner on 14.11.1980. Therefore, he served the demand notice on 16.1.1981. The civil suit was filed by the petitioner on the advice of the Advocate. It would be wholly in equitable and unjust to make the workman suffer for the negligent advice rendered by the Advocate. No material has been placed on record by the respondents to show that there was any deliberate delay caused by the petitioner in serving the demand notice. I find no justification in denying the full back wages to the petitioner. 11. In view of the above, the petition is allowed. Award of the Labour Court is modified and it is held that the petitioner is entitled to full back wages from the date of termination till reinstatement. 12. No costs.