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2013 DIGILAW 650 (PNJ)

Baldev Sahai v. Presiding Officer

2013-05-17

G.S.SANDHAWALIA

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JUDGMENT : G.S. Sandhawalia, J. The challenge in the present writ petition filed by the workman under Article 226/ 227 of the Constitution of India is to the award dated 5.10.1993 (Annexure P-1) whereby the petitioner has been granted only 50% back wages from the date of demand notice dated 22.4.1989 till his reinstatement i.e. 5.6.1995. The facts which are necessary to be noticed are that the petitioner joined the P.W.D. (B&R), Punjab with effect from 22.12.1986 as Work Munshi and had worked continuously till 31.5.1988. His services were terminated on 1.6.1988 without any notice and he had not been paid any retrenchment compensation. He issued demand notice on 22.4.1989 which led to the industrial dispute being referred to the Labour Court on 17.9.1989. The Labour Court vide impugned award dated 5.10.1993 came to the conclusion that the workman had put in more than 240 days of service and his services could only be terminated by complying with the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) since one month notice or one month pay in lieu thereof had not been given. The termination was held not justified and not in order. Accordingly, direction was issued to reinstate the workman with continuity of service and with half of the back wages from the date of demand notice till reinstatement. 2. The said award was challenged by filing Civil Writ Petition No. 4061 of 1994 by the department which was dismissed by a Division Bench of this Court on 27.7.1994. The said order was further upheld by the Hon'ble Apex Court in SLP No. 9388 of 1995 on 1.5.1995 and in pursuance of that petitioner joined on 5.6.1995. The petitioner, thus, claims that he is entitled for full back wages from the date of his termination i.e. 1.6.1988 till his reinstatement i.e. 5.6.1995. 3. Counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court in Devinder Singh Vs. Municipal Council, Sanaur, AIR 2011 SC 2532 to contend that the petitioner is entitled for full back wages from the date of his termination till reinstatement. 4. On the other hand, counsel for the State has relied upon the judgment of the Hon'ble Apex Court in U.P.S.R.T.C. Ltd. Vs. Municipal Council, Sanaur, AIR 2011 SC 2532 to contend that the petitioner is entitled for full back wages from the date of his termination till reinstatement. 4. On the other hand, counsel for the State has relied upon the judgment of the Hon'ble Apex Court in U.P.S.R.T.C. Ltd. Vs. Sarada Prasad Misra and Another, AIR 2006 SC 2466 to contend that full back wages are not to be given mechanically and it depends upon the facts and circumstances of each case. The burden is upon the employee to prove that he had not been gainfully employed during the period he remained out of service and thus defended the award dated 5.10.1993 (Annexure P-1). 5. After hearing counsel for the parties, this Court is of the opinion that the workman has not been able to bring on record any material to show that he had not been gainfully employed from the date of his termination i.e. from 1.6.1988 till his reinstatement i.e. on 5.6.1995. The Hon'ble Apex Court Ritu Marbles v. Prabhakant Shukla (2010) 2 SCC 70 has examined in detail the issue of payment of back wages. In the said case, the High Court had ordered to pay full back wages and modified the award of the Labour Court, who had only awarded 50% back wages. The appeal against the said order was allowed by the Hon'ble Apex Court by holding that discretion exercised by the Labour Court should not have been interfered with by placing reliance upon earlier judgments. Relevant paras of the judgment read as under: 21. Applying the aforesaid ratio of law we have examined the factual situation in the present case. The services of the respondent were admittedly terminated on 11.6.1987. The Labour Court gave its award on 27.9.2002. Therefore, there is a gap of more than 15 years from the date of termination till the award of reinstatement in service. Labour Court upon examination of the entire issue concluded that the respondent would not be entitled to any back wages for the period he did not work. A perusal of the award also shows that the respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service of the appellant. A perusal of the award also shows that the respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service of the appellant. In the writ petition the respondent was mainly concerned with receiving wages in accordance with the Minimum Wages Act and for inclusion of the period spent in Conciliation Proceedings for the calculation of financial benefits. The High Court without examining the factual situation, and placing reliance on the judgment in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Others held that the normal rule of full back wages ought to be followed in this case. We are of the considered opinion that such a conclusion could have been reached by the High Court only after recording cogent reasons in support thereof, Especially since the award of the Labour Court was being modified. The Labour Court exercising its discretionary jurisdiction concluded that it was not a fit case for the grant of back wages. In the case of P.V.K. Distillery Ltd. (supra), it is observed as follows: The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable. 22. In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. 23. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement. 6. 23. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement. 6. The counsel for the petitioner has failed to demonstrate that the judicial discretion exercised by the Labour Court suffers from any serious infirmity which would warrant interference under Article 226/ 227 of the Constitution. The workman has failed to bring any material on record to show that he had not been gainfully employed during the period he remained out of service. The judgment in Devinder Singh v. Municipal Council, Sanaur (supra) is not applicable to the facts of the present case since the issue therein pertained to Section 2(oo)(bb) and the order of reinstatement of the workman was set aside by the High Court and only wages in terms of Section 17-B of the Act were awarded. The Hon'ble Apex Court held that interference in the writ jurisdiction was not justifiable and restored the award alongwith wages from the date of award till the date of actual reinstatement. Hence, the award of the Labour Court cannot be interfered with keeping in view the aforesaid observations. Accordingly, the present writ petition is dismissed.