Himachal Pradesh State Electricity Board and Another vs Hardev Singh and Another

V.K. Sharma, J.—The petition has been filed on the following prayer:

It is, therefore, most humbly and respectfully prayed that this Civil Writ Petition may kindly be allowed and the impugned award dated 18.5.2010 passed by Respondent No. 2 in Ref. No. 79 of 2005 (Annexure P-3) may kindly be quashed and set aside, in the interest of justice and fair play.

The learned Counsel for the Petitioners and Respondent No. 1 submit that the matter is covered under common judgment dated 23.12.2010, rendered by this Court in CWP No. 6337 of 2010, text whereof is as follows:

Since common questions of law and facts are involved in all these petitions, some of which have been filed by the workmen and others by the employer(s)-Board, arising out of the awards passed by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala (H.P.), the same are heard together and disposed of by a common judgment.

The references were answered by the learned Presiding Judge vide the impugned awards by ordering reinstatement of the workmen, except Petitioners No. 2 and 4, namely Gurmail Singh and Ram Lal (wrongly mentioned in the award as Rattan Lal) in Reference No. 79 of 2005, titled Pawan Kumar and Ors. v. The Executive Engineer, HPSEB Ganvi Construction Division, Jeori, Rampur Bushehr, Distt. Shimla, HP. (C.W.P No. 6721 of 2010). Whereas in some of the cases continuity in service and seniority has been ordered to be maintained from the date(s) of termination, in others such reliefs have been denied. In one case, Reference No. 121 of 2007, Narinder Singh v. The Executive Engineer, HPSEB, Division Amb, Dist. Una, HP. (CWP No. 6375 of 2010), back wages to the extent of 25% have also been awarded.

We have heard the learned Counsel for the parties and perused the record.

Insofar as the impugned awards to the extent the same relate to the grant of relief of reinstatement in favour of the workmen along with continuity in service and seniority from the date(s) of termination is concerned, the same is born out of the materials on record.

In the exercise of our jurisdiction under Articles 226/227 of the Constitution of India, we do not sit in the appeal or the findings of fact. The very purpose of constitution of Tribunal-Labour Court is for that exercise of taking evidence and appreciating the evidence for entering findings of fact. The entitlement of workmen for reinstatement has been thus found based on the evidence available on record. It will not be proper for this Court to re-appreciate the same. The Management was not able to establish that the award for reinstatement is perverse or unreasonable or based on no material. Therefore, we decline to interfere with the award on reinstatement.

Once the termination has been found to be illegal and there is consequential direction for reinstatement, it is only just, fair and proper that the natural corollary to the order also follows namely continuity in service and needless to say seniority too. Therefore, we also make it clear that the workmen shall be entitled to continuity in service and seniority.

However the claim for back-wages is to be examined in a different angle. Back-wages on reinstatement is never a natural or inevitable consequence. The claim for back-wages will depend on several factors, the main factor being the evidence in that regard. The delay in initiating the process is another relevant factor. The delay contributed by the workmen for completing the process of adjudication is yet another factor. The award for reinstatement is on the ground of vilolation of procedural formalities is also a relevant factor. No doubt, these factors are not exhaustive. However, having regard to the facts which we have referred to above, we find it difficult if not impossible to sustain the award for back-wages or the claim made by the workmen in two writ petitions for back-wages.

Therefore, the impugned award in Reference No. 121 of 2007, Narinder Singh v. The Executive Engineer, HPSEB, Division Amb, Dist. Una, HP. (CWP No. 6375 of 2010), cannot be upheld to the extent it relates to payment of 25% back wages in favour of the Petitioner, therein.

For the reasons stated above, the petitions are disposed of in the following terms:

(i) The impugned awards to the extent the same relate to reinstatement of the workmen along with continuity in service and seniority from the date(s) of termination, are upheld;

(ii) In cases where though the workmen have been held entitled for reinstatement, but without continuity in service and seniority, they shall also be entitled for continuity in service and seniority from the date(s) of termination ;

(iii) The Petitioner, Narinder Singh, in Reference No. 121 of 2007, Narinder Singh v. The Executive Engineer, HPSEB, Division Amb, Dist. Una, HP. (CWP No. 6375 of 2010), shall not be entitled for any back wages; and (iv) All the workmen are ordered to be reinstated along with continuity in service and seniority from the date(s) of termination, within one month from the date of production of copy of this judgment by the Petitioner concerned before the appointing authority, if not already reinstated.

The petitions so also pending CMP(s), if any, stand disposed of leaving the parties to bear their own costs throughout."

In view of the above, the petition is disposed of in terms of the judgment referred to here-in-above, which shall govern this matter.

The petition so also pending CMP(s), if any, stand disposed of as above.