Punjab-Haryana High Court
State Of Haryana vs Sewa Singh on 26 September, 2000
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT S.S. Sudhalkar, J.
1. This writ petition is filed by the employer challenging the award of the Labour Court dated 8.2.1999 (copy annexure P/6) vide which respondent No. 1 was ordered to be reinstated with continuity of service and full back wages. It was also held that since the Government should not suffer on account of arbitrary act on behalf of its some officers/officials so in the first instance the entire amount of back wages shall be paid by the department but thereafter it shall be at liberty to recover the same from the officer who illegally and arbitrarily retrenched respondent No. 1.
2. Learned Counsel for the petitioner has advanced arguments only qua back wages. After hearing learned Counsel for the petitioner, we find that this writ peii-tion is without merit.
3. Learned Counsel for the petitioner argued that full back wages ought not to have been awarded in this case. He has relied on some judgments of this Court. Copy of a judgment in Civil Writ Petition No. 11913 of 1991 - General Manager, Haryana Roadway, Rohtak v. Shri Suraj Bhan and another (copy Annexure P/8). In that ease, the D.B. of this Court had held that because the workman had not actually worked on the post, he will not be entitled to back wages. The other case, which the counsel for the petitioner has referred to is of Civil Writ Petition Na. 411 of 1982, M.K. Kohli v. M/s. Alfadeal Chemicals, Faridabad, copy of which has been produced as Annexure P/9. In that case, it is held that it will not be believable that the workman remained out of job or that he was not gainfully employed right from 1979 onwards and for his survival he must be striving here and there. But as the workman was wrongly deprived of his right of reinstatement, he was awarded back wages at the rate of 25%. Another judgment produced as Annexure P/7, is not on the point of back wages.
4. In the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court, reported in 1979 PLR 720, it has been held by Full Bench of this court that ordinarily 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, it is, therefore, held that this is the normal rule and the party objecting to it must establish the circumstances necessitating departure. In view of the Full Bench judgment, the judgments in the cases of General Manager, Haryana Roadways and M.K. Kohli (supra) cannot be said to be laying down the correct law. Merely because the workman has not worked, he cannot be denied back wages because the unemployment is the forced unemployment. Moreover, in the period of forced unemployment, it cannot be presumed that work will be readily available to such workman whose services are terminated and it would not be proper to presume that the workman can be said to-have been gainfully employed in view of the fact that he survived during the period of forced unemployment.
5. Counsel for the petitioner has cited another judgment in Civil Writ Petition No. 1989 of 1996, The Pal-wal Cooperative Sugar Mills Limited v. The Presiding Officer, Labour Court-II, Faridabad and another. It is a judgment of D.B. in which one of us (S.S. Sudhalkar) was a member. In that case, it was considered after long discussion on the arguments advanced that the award of full back wages could not be upheld. One factor was the workman has served for less than one and a half year before he was terminated and the second was that neither workman nor employer could be blamed for the delay in the decision or the dispute. Here in this case, length of service of respondent No. 2 cannot be said to be long, however, the second reason taken into consideration by D.B. in the case of Palwal Cooperative Sugar Mills (supra) cannot been applied in this case. It is not shown in the petition as to who was responsible for the delay or that the petitioner has not contributed to the delay. The judgment in the case of Palwal Cooperative Sugar Mills (supra) was based on the facts shown in that case and from the facts shown the above principles were kept in mind by the D.B. while restricting the back wages to 60 per cent.
6. Considering the judgment in the said case along-with the judgment of Full Bench in the case of Hari Palace (supra), we find that the judgment does not in any way in conflict with the case of Hari Palace because in the case of Hari Palace, it is held that the party objecting to the back wages must establish circumstances necessitating departure. In the case of Palwal Coop. Sugar Mills (supra) the petitioner has done it. In the present case, nothing has been shown as to why full back wages should be denied to the respondent- workman. Therefore, we do not find it proper to interfere with the award of the Labour Court.
7. Before parting with the judgment, we would like to observe that the Labour Court has permitted recovery of back wages from the officers/officials who illegal and arbitrarily retrenched respondent No. 2. However, we clarify that said permission shall not be treated as direction and in case the petitioner decides to recover the said amount, he shall give necessary opportunity to the officer to explain his case.
With the above observations, this writ petition is dismissed.
8. Petition dismissed.