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2008 DIGILAW 2095 (PNJ)

Tarsem Singh v. Presiding Officer

2008-12-11

HARBANS LAL

body2008
Judgment Harbans Lal, J. 1. This petition has been moved by Tarsem Singh under Articles 226/227 of the Constitution of India for modifying the award dated 8.5.1987 Annexure P.I. 2. The facts in brief are that the petitioner was appointed as a Clerk on 15.1.1972 in the Central Cooperative Bank Limited, Tarn Taran, which stood amalgamated with the Amritsar Central Cooperative Bank, Limited Hall Gate, Amritsar. His services were terminated by not allowing him to join his duty with effect from 3.9.1979. He served a demand notice. Thereupon, the reference was made to the Labour Court, Amritsar. Vide impugned order, the Labour Court held that the workman is reinstated with continuity of service without back wages. This award is liable to be modified to the extent that the petitioner is also entitled to get full backwages for the reasons embodied in this petition. 3. None has come forward on behalf of the respondent - The Amritsar Central Cooperative Bank Limited, Hall Gate, Amritsar to argue this petition. 4. I have heard the learned counsel for the petitioner, besides perusing the findings returned by the learned Presiding Officer, Labour Court with due care and circumspection. 5. Mr. G.S. Ahluwalia, Advocate appearing on behalf of the petitioner urged with great eloquence that the learned Presiding Officer, Labour Court has not assigned cogent reasons for declining the relief of back-wages to the petitioner, who never remained gainfully employed. He was working and helping his father in cultivation merely to sustain himself, his wife and children and that being so, he could not be deprived of the back-wages. To verify this contention, he has sought to place reliance upon the observations rendered in re: Satnam Singh vs. Presiding Officer, Labour Court, Gurdaspur and others, 2001 (3) Recent Services Judgments 469; Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and others, 1984(2) All India Services Law Journal 492. 6. I have given a deep and thoughtful consideration to these submissions. The learned Presiding Officer, Labour Court has observed that any order of termination of the workman was not passed, nor resignation was accepted and that being so, he must be treated to be continuing in the employment of the respondent- bank. It is not out of place to mention here that the respondent-bank has not posed a challenge to this award. It is not out of place to mention here that the respondent-bank has not posed a challenge to this award. The workman has been deprived of the back-wages by the Labour Court, with the observations that he had been helping his father in cultivation of land and thus, there must have been increase in production. These observations call for interference. When the petitioner had no work as dependent son, he assisted his father and helped him in agriculture. This cannot be said to be a gainful employment. It was a forced idleness. In re : Rajinder Kumar Kindra (supra), the Apex Court held that it was next contended on behalf of the appellant that reinstatement with full back-wages awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his examination has admitted that,during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and members of his family lived with his father-in-law and that he had no alternative source, of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as will be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny backwages on the ground that the appellant and the members of his family were stayings with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for backwages. This cannot be said to be gainful employment so as to reject the claim for backwages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back-wages and all consequential benefits." Thus, the Labour Court was not justified in denuding the petitioner of his right to back-wages on the stated ground. It has been brought to the notice by the learned counsel for the petitioner that the petitioner has been superannuated by now. Statedly, he in compliance with the impugned award was not reinstated. In re ; Rajasthan Lalit Kala Academy vs. Radhey Shyam, 2008(4) Service Cases Today 841, the workman was appointed on 7.6.1980 on a monthly salary of Rs. 300/-to do the work of a junior Clerk. On 4.4.1981, his services were terminated. On an industrial dispute being raised, the Industrial Tribunal, Jaipur by an award dated 24.9.1983, set aside the order of termination and directed reinstatement of the respondent with effect from 24.9.1983 with 50% backwages. The Apex Cou rt held as under:- "It appears to us that in the present case there has not been due application of mind either by the Labour Court or the High Court on the question of reinstatement and payment of 25% back-wages. The only ground on which reinstatement and continuity of service has been ordered is because the order of termination has been held to be unlawful. Similarly, 25% back- wages have been awarded for the reason that the services of the petitioner were terminated with immediate effect, but no specific reason as such, has been assigned for the award of the said back-wages. In our opinion, though, illegality of the order of termination is one of the prime considerations for determining the question and quantum of back-wages, but it cannot be the sole criterion therefor. A host of other factors, a few enumerated above, are required to be taken into consideration before issuing directions in that behalf. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent-workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. Therefore, the award of the Labour Court to that extent cannot be sustained. However, we feel that at this distant time, it would not be fair to the respondent-workman to remit the matter back to the Labour Court or the High Court for fresh consideration of the issue. In the light of the observations referred to supra and having regard to the nature and the period of services rendered by the respondent and the fact that his services were terminated initially on 4th April, 1981 and then on 31 st January, 1985 and the vicissitudes of long-drawn litigation, the respondent has undergone for over 27 years, interest of justice would be met if instead and in place of direction for reinstatement and back-wages - a sum of Rs. 3 lakhs is directed to be paid to the respondent by way of compensation. We direct accordingly. The payment shall be made within eight weeks from today, failing which it shall carry interest @ 9% per annum from the date of this judgment till the date of actual payment." 7. Coming to the facts of the instant case, the workman was employed as a Clerk. He worked as such since 15.1.1972 onwards. He was not allowed to join his duty with effect from 3.9.1979. It means that he had served for 6 or 7 years in this capacity. Thus, obviously, the facts of the present case are somewhat identical with Radhey Shyams case (supra). Sequelly, it is held that the interest of justice would be met, if instead and in place of direction for reinstatement and back-wages, a sum of Rs. 3 lacs is directed to be paid by respondent No. 2 to the petitioner - workman by way of compensation. I direct accordingly. The payment shall be made within eight weeks from today, failing which, it shall carry interest at the rate of 9% per annum from today till the date of actual payment. Disposed of accordingly