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2004 DIGILAW 44 (PNJ)

Sukhdev Singh v. General Manager, Punjab Roadways

2004-01-14

S.S.NIJJAR

body2004
Judgment S.S.Nijjar, J. 1. I have heard the learned counsel for the parties at length and perused the record of the case. V 2. In this petition under Articles 226/227 of the Constitution of India, the petitioner seeks the limited relief of modification of final paragraph of the award dated 28.7.1983 passed by the learned Presiding Officer, Labour Court,Amritsar, whereby the relief of backwages has been denied to the petitioner although he has been ordered to be reinstated in employment with continuity of service. 3. The services of the petitioner were terminated on 14.09.1978. He served a demand notice dated 10.06.1980, under the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), on the respondents. The dispute was referred to the learned Labour Court on 28.7.1980. After considering the entire matter, the learned Labour Court has come to the conclusion that there has been a violation of Rule 9(4)(i)(b) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as the Rules). It is held that the respondents failed to give necessary notice to enable the petitioner to make a representation against the show cause notice. It is also held that even the reply to the Show Cause Notice given by the petitioner has not been considered by the punishing authority. The order of termination has been held to be illegal. Having held as above, the learned Labour Court has denied the benefit of backwages to the petitioner. 4. Learned counsel appearing for the petitioner submits that the matter is squarely covered by the Full Bench decision of this Court in the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court and Anr.,1 (1979)81 P.L.R. 721. 5. On the other hand, Mr. H.S.Sran, learned Additional Advocate General appearing for the respondents has submitted that the petitioner cannot be automatically granted the benefit of full backwages on reinstatement. He further submits that the learned labour court had the discretionary power to decline the* grant of backwages on the principle of "No Work No Pay". In support of this submission, the learned counsel has relied on the judgment of the Supreme Court in the case of Kisan Singh v. State of Punjab,2 1990(1) Recent Service Judgments 372. 6. I have considered the submission made by the learned counsel for the parties. 7. In support of this submission, the learned counsel has relied on the judgment of the Supreme Court in the case of Kisan Singh v. State of Punjab,2 1990(1) Recent Service Judgments 372. 6. I have considered the submission made by the learned counsel for the parties. 7. It is settled proposition of law that ordinarily a workman whose service has been illegally terminated would be entitled to full backwages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule and the party objecting to it must establish the circumstances necessitating departure. The aforesaid ratio of law can be culled out from a decision of the full Bench of this Court in the case of Hari Palace, Ambala City v. The Presiding Officer Labour Court and Anr., (1979) 81 P.L.R. 721. After analysing the legal position, on the basis of principle as well as the president, 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 courts on the point earlier. Varying views 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. 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. 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 on 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 Fibres India Ltd., 1979 Labour & Industrial Cases 298". 8. 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 backwages is concerned. 9. Mr. Sran has also contended that the petitioner would only be entitled to back-wages from the date of demand notice, i.e., 10.6.1980. It is, however, pointed out by the learned counsel for the petitioner that the petitioner, even though ill advisedly, was pursuing the remedy of civil suit. It is settled proposition of law that the benefit of back-wages can be curtailed to the date of the issuance of demand notice, provided the inordinate delay in issuing the demand notice is unexplained by the petitioner. In the present case, no circumstances have been brought on the record by the respondents to show that the petitioner had deliberately filed the civil suit just to cause delay in adjudication of the matter. In the present case, no circumstances have been brought on the record by the respondents to show that the petitioner had deliberately filed the civil suit just to cause delay in adjudication of the matter. I am of the considered opinion that this could not possibly be the reason for the petitioner to file the civil suit as he has nothing to gain by delaying the proceedings. Therefore, I am unable to hold that the petitioner has been guilty of deliberate delay in issuing the demand notice. 10. Mr. Sran, learned counsel for the respondents, has argued that even if the demand notice is held to have been issued without any delay, the petitioner would only be entitled to wages from the date of filing of the civil suit. In the present case, the civil suit was filed on 22.12.1979. The plaint was returned to the petitioner on 4.6.1980 on the ground that the civil court has no jurisdiction. The demand notice was issued on 10.6.1980. From the above, it becomes apparent that no deliberate delay has been caused by the petitioner. The civil suit was filed within limitation. Once an action is initiated within the period of limitation, the period prior to its initiation, cannot be taken note of, for the purpose of deciding the question of delay and laches. In view of the above, I am of the considered opinion that the award of the labour court suffers from an error apparent on the face of the record to the extent that the benefit of backwages has been denied to the petitioner. The writ petition is allowed, it is held that the petitioner is entitled to back wages from the date his services were illegally terminated. No costs.