Jagmal Singh vs Presiding Officer, Labour Court and Another

N.C. Khichi, J.—The services of the petitioner were terminated by respondent No. 2 without holding any enquiry on October 28, 1976. The petitioner raised industrial dispute and the same was referred to the Presiding Officer, Labour Court, Haryana, Rohtak, u/s 10(1)(c) of the Industrial Disputes Act (for short, ''the Act''), 1947, for adjudication. The term of reference was :--

Whether the termination of services of Shri Jagmal Singh was justified and in order?

If, not, what relief is he entitled?

Both the parties filed their respective claims. The stand taken by the respondent-management was that a detailed charge-sheet was issued to the petitioner on September 20, 1976 and he failed to submit his explanation and consequently, the management terminated his services on October 28, 1976. It was further maintained by the management that the services of the petitioner workman were terminated for valid and cogent reasons on the charge being proved against him by the evidence on record.

After hearing the parties and on appreciating the evidence on record, the Labour Court vide award dated January 14, 1981, (Ann. P. 1) partly answered the reference in favour of the workman and the relevant portion thereof is reproduced below:--

"xxxx This leads me to the conclusion that the respondent framed the charges and terminated the services of the workman having some ulterior motive and in order to victimise him. Only with this motive the management did not allow the workman to examine the record and afford him the reasonable opportunity of his defence and all at once terminated his services without waiting for his reply and without holding a regular enquiry into the allegation which is contrary to the accepted principles of natural justice. This kind of abritrary action of the management can never be permitted to which I put my seal of confirmation. The order of termination dated October 28, 1976 cannot therefore, be justified under these circumstances and the same is, therefore, illegal and is set aside. But there are clear instances of irregularities and of misappropriation in the record admitted to have been maintained by him, he cannot escape the responsibility and the same cannot be mitigated. In consequence he cannot be allowed the benefit of full backwages. I, therefore, give my award that the workman is entitled to reinstatement with continuity of service but with 50 per cent backwages. I give my award in the above terms and return the same accordingly."

The award dated January 14, 1981 (Ann. P. 1) has been challenged by the petitioner-workman so far he was denied 50 per cent of the backwages. It is alleged by the petitioner that the award in question (Ann.P. 1) in so far it awards only 50 per cent back-wages, illegal, arbitrary and without jurisdiction and that he should have been awarded full backwages which is the normal rule.

In reply, the respondent-management contended the claim of the petitioner and controverted the allegations made in the writ petition. It was pleaded that the petitioner is not entitled to full backwages.

I have heard the learned counsel for the parties and have gone through the record of the case. It has been contended by the learned counsel for the petitioner that once the petitioner was reinstated with continuity of service, normally there should have been an order for full backwages unless it is found that the workman was gainfully employed during any period. There appears to be force and substance in this connection. In the case of Hari Palace Vs. Labour Court and Another, it has been held by a Division Bench of this Court that ordinarily a workman whose service has been illegally terminated would be entitled to full backwages except to the extent he was gainfully employed during the enforced idleness and that is the normal rule and the party objecting to it must establish the circumstances necessitating departure. The decision of the Apex Court referred in Hindustan Tin Works Pvt. Ltd. Vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Others, was followed, wherein it was held that ordinarily a workman whose service has been illegally terminated would be entitled to full backwages except to the extent he was gainfully employed during the enforced idleness and that is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. In the instant case, the management had also challenged this very award by way of filing Civil Writ Petition No. 1836 of 1981 and the same was dismissed in limine vide order dated May 8, 1981. The Labour Court returned a categorical finding that the management terminated the services of the petitioner without holding a regular enquiry into the allegations which was contrary to the accepted principles of natural justice and that it was done with ulterior motive and in order to victimise him. Once the termination is held to be illegal and unjustified then the Labour Court was not justified to withhold 50 per cent of the backwages. In the normal course in such an eventuality, the workman is entitled to full backwages unless it was proved that he was engaged in gainful employment. Herein, this is not the case putforth by the management. The onus was upon the management to prove that the workman remained gainfully employed. Once the reinstatement with continuity of service has been allowed by the Labour Court, there appears to be no reason to refuse the full backwages to him. A recent decision in P.R.T.C. Workers Union (Regd.) Vs. Pepsu Road Transport Corporation and Others, can be referred in this connection with advantage wherein same view was taken.

In view of what has been stated above, this writ petition succeeds and the impugned award (Ann. P.1) is modified to the extent that the respondent-management shall pay full backwages to the petitioner. A direction is issued to the respondent-management to pay full backwages to the petitioner within a period of 2 months from the receipt of a copy of this order from the Court or a certified copy thereof from the petitioner, failing which interest @ 12 per cent per annum shall be paid from the date of this order till realisation.