Punjab-Haryana High Court
Gurdaspur vs Gulshan Kumar And Another on 1 February, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP No. 1908 of 1994 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.W.P. No. 1908 of 1994
Date of Decision: February 01, 2012
The Executive Engineer Central Works Division, Pathankot, District
Gurdaspur.
... Petitioner
Versus
Gulshan Kumar and another.
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. N.S. Virk, Addl. A.G., Punjab,
for the petitioner.
None for the respondents.
Paramjeet Singh, J.
The instant writ petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for quashing of ex-parte award dated 10.12.1991 (Annexure P/1) passed by respondent No.2 - Presiding Officer, Labour Court, Gurdaspur, whereby respondent No.1 - Gulshan Kumar has been reinstated with full back wages from the date of notice i.e. 07.07.1998 and continuity of service and order dated 18.11.1993 (Annexure P/6) passed by the Presiding Officer, Labour Court, Gurdaspur, refusing to set aside ex-parte award.
CWP No. 1908 of 1994 2
Brief facts of the case are that respondent No.1 - Gulshan Kumar joined the services of the petitioner as Inspector on daily wages on 22.07.1982 (A.N.). His services were terminated vide order dated 03.08.1983 by the petitioner on the ground that he had willfully absented himself from duty on 11.09.1982, 04.12.1982 to 08.12.1982, 04.01.1983 to 31.01.1983, 01.02.1983 to 28.02.1983, 13.05.1983, 14.05.1983, 17.06.1983 to 23.06.1983 and 17.07.1983. Aggrieved against termination order dated 03.08.1983, respondent No.1 served a demand notice dated 23.08.1988 (Annexure P/4) on the petitioner. Thereafter, respondent No.1 raised an industrial dispute before the Labour Court for adjudication. Vide award dated 12.12.1991 (Annexure P/1), Labour Court directed that respondent No.1 be reinstated with continuity of service and full back wages from the date of demand notice i.e. 07.08.1988 till reinstatement. Hence, this writ petition.
I have heard learned counsel for the petitioner and perused the record.
In the present case, no stay was granted. This Court vide order dated 19.04.2010, directed the petitioner to seek instructions whether the workman has been reinstated into service or not.
In pursuance of that order, this Court on 17.05.2010 has passed the following order:-
"In compliance with the order passed by this Court on 19.04.2010, counsel for the petitioner has placed on record additional affidavit of Shri D.S. Sahi, EXN, Central Works CWP No. 1908 of 1994 3 Division, Pathankot, according to which the petitioner was taken back in service. He continuously received the wages upto 28.02.2008 and thereafter, has not reported for duty. A departmental committee was constituted to enquire into this aspect and the committee has concluded that Gulshan Kumar / respondent No.1 never comes to give his attendance in the office or any other work after 01.04.2008. This report has been appended as Annexure-P/A-1 with the affidavit. The affidavit as well as the report is taken on record.
As per report of the Registry, notice issued to respondent No.1 has not been received back served or otherwise.
Let fresh notice be issued to respondent No.1 for 28.07.2010."
The petitioner is only disputing with regard to the award of full back wages. It is an admitted fact that the petitioner remained absent from duty on 11.09.1982, 04.12.1982 to 08.12.1982, 04.01.1983 to 31.01.1983, 01.02.1983 to 28.02.1983, 13.05.1983, 14.05.1983, 17.06.1983 to 23.06.1983 and 17.07.1983. The principle of `No Work No Pay' will apply so far as the back wages are concerned. It is fact that respondent - Gulshan Kumar has been taken into service despite having remained absent from duty. It is not the case of the respondent that he remained unemployed. In the light of the peculiar facts of the case, there was no justification whatsoever to grant full back wages to respondent CWP No. 1908 of 1994 4 Gulshan Kumar on the general principle that nobody could be permitted to claim wages for the period that he remained absent from duty without leave or without justification. Keeping in view the fact that the petitioner has been taken back into service and has not done work for sufficiently long period and he had not pleaded that he was not gainfully employed during that period. In such circumstances, there is no justification for awarding full back wages. It will meet ends of justice, if he is paid 30% back wages for the period from the date of demand notice i.e. 07.07.1988 till the date of joining.
In view of the above, the award of the learned Labour Court awarding full back wages is modified to the extent of 30% back wages to be paid to respondent - Gulshan Kumar for the date of demand notice i.e. 07.07.1988 till the date of joining. With this modification, the award of the learned Labour Court is affirmed.
The writ petition is disposed of accordingly.
There shall be no order as to costs.
February 01, 2012 ( Paramjeet Singh ) vkd Judge