Mukesh Kumar vs Presiding Officer,Industrial Tribunal-cum-Labour Court

Gurmeet Singh Sandhawalia, J.—This order shall dispose of two writ petitions i.e. CWP Nos. 2522 and 2527 of 2014, as common questions of facts and law are involved in both the writ petitions. Facts are being taken from CWP No. 2522 of 2014, Mukesh Kumar v. Presiding Officer, Industrial Tribunal-cum-Labour Court and others. Prayer in the present writ petition is for modifying the award dated 11.10.2013 (Annexure P-7) whereby, only 50% back wages have been granted by the Labour Court, Panipat from the date of demand notice.

A perusal of the paper book would go on to show that the petitioner was appointed as a Safai Karamchari in February, 2006 by the respondent No. 2-Technical Institute and was given salary upto July, 2006. The workman raised a demand in the month of August, 2006 for his deducted salary and also prayed for regularizing his services but his services were terminated on 12.06.2007 without complying with the mandatory provisions of the Industrial Disputes Act, 1947 (in short ''the Act''). Accordingly, he raised a demand dated 04.07.2007, on which the matter was referred to the Labour Court. The defence taken was that there was no relationship of employer-employee and no demand was made for the month of July, 2006. The workman had not applied for any post and no procedure was followed and he was not issued any appointment letter.

The workman examined himself as solitary witness and tendered his affidavit (Annexure P-6)/Ex.WW1/A but the Labour Court, after perusing the evidence, came to a finding that there was admission by the respondent''s witness that the workman had worked from August 2006 to 11.06.2007 and his presence was marked in the attendance register. Accordingly, reinstatement was ordered restricting the back wages to 50% from the date of demand notice dated 04.07.2007.

Counsel for the petitioner has vehemently submitted that the petitioner was entitled for 100% back wages since he had been illegally terminated from the services without following the due procedure and he could not be penalized for the illegal action of the management.

There is no doubt to the proposition of law as submitted by counsel for the petitioner. However, in the present case, it is to be noticed that in the evidence of the workman, which he gave through affidavit, which has been attached as Annexure P-6, there is not a whisper of a fact that he had remained unemployed between the period of termination and the filing of the affidavit. Once the petitioner himself has failed to aver that he was unemployed, therefore, the question of giving him full back wages would not arise. The Labour Court was fully justified in restricting the award to only 50% back wages. The Apex Court in U.P.S.R.T.C. Ltd. Vs. Sarada Prasad Misra and Another, has held that payment of back wages is a discretionary power which is to be exercised keeping in view the facts and circumstances and not as a straight jacket formula and the initial burden is on the employee to prove that he remained unemployed. The relevant portion of the judgment reads thus:- "13. But even otherwise, the award passed by the Labour Court as also the order of the High Court granting back wages deserves interference. In several cases, this Court has held that payment of back wages is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case and neither straight jacket formula can be evolved, nor a rule of universal application can be adopted [vide P.G.I. of M.E. and Research, Chandigarh Vs. Raj Kumar, ; Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, In Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, this Court held that when question of determination of entitlement of back wages comes up for consideration, prima facie, it is for the employee to prove that he had not been gainfully employed. Initial burden is on the employee to show that he remained without any employment. In several cases, similar view has been taken by this Court in recent years. In M.P. State Electricity Board Vs. Smt. Jarina Bee, it was observed that reinstatement in service and payment of back wages are two different things and payment of back wages is not a natural consequence of setting aside an order of dismissal. In Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, it was indicated that the law is not in absolute terms that in all cases of illegal termination of services, a workman must be paid full back wages. In Haryana State Coop. Land Development Bank Vs. Neelam, it was stated that the aim and object of Industrial Disputes Act is to impart social justice to the workman but keeping in view his conduct. Payment of back wages, therefore, would not be automatic on entitlement of the relief of reinstatement. In General Manager, Haryana Roadways Vs. Rudhan Singh, , the Court reiterated that there is no rule of thumb that in each and every case, where the Industrial Tribunal records a finding that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors which are relevant, must be taken into account."

In the present case, as noticed above, the workman himself has failed to allege his unemployment and, therefore, the said benefit of 100% back wages cannot be granted to him. The discretion exercised by the Labour Court cannot be interfered with as this Court is not sitting as a Court of Appeal and no error or irregularity has been pointed out by the counsel for the petitioner in the award passed by the Labour Court.

Accordingly, the present petition is dismissed in limine.