Ram Niwas vs Rameshwar Dayal Saraff and Others

Tejinder Singh Dhindsa, J.—Vide award dated 11.2.2009 passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon, reference was answered in favour of the workman-present petitioner and he was held entitled to re-instatement in service with back wages to the extent of 30% on the basis of last drawn salary. The instant petition has been filed by the petitioner confining the challenge to the award dated 11.2.2009 to the extent of denial of full back wages from the date of termination i.e. 12.8.1998 till 11.2.2009.

Mr. Narender Yadav, learned counsel appearing for the petitioner, would contend that once the finding has been returned by the Labour Court in favour of the workman and it has been found that the action of the respondents in dispensing with his services did not fall within the scope of retrenchment, then in law he was entitled to re-instatement along with full back wages. It has further been argued that the back wages have been limited to the extent of 30% without any cogent and valid basis.

Per contra, Mr. ND Achint, Advocate appearing for respondents No. 1 and 2, would submit that the award dated 11.2.2009 was a subject matter of challenge before this Court in Civil Writ Petition No. 10131 of 2009 that had been preferred by the Management and such writ petition was dismissed on 17.2.2010 thereby upholding the award. It is argued that under such circumstances, there would be no scope for intervention even as regards the quantum of back wages that has been awarded.

Learned counsel for the parties have been heard.

Undoubtedly, the award dated 11.2.2009, Annexure P2, was impugned by the Management by way of filing Civil Writ Petition No. 10131 of 2009. Such writ petition stands dismissed in terms of judgment dated 17.2.2010. However, the issue that had been primarily dealt with by a Co-ordinate Bench while upholding the award dated 11.2.2009 was with regard to action in dispensing with the services of the workman to be bad in law and as such, directing his re-instatement. Mr. Achint, learned counsel appearing for respondents would fairly concede that the issue as regards the quantum of back wages awarded had not been raised and as such, neither dealt with.

A perusal of the impugned award would reveal that back wages awarded in favour of the petitioner upon reinstatement have been limited to the extent of 30% by observing that it had not been proved that the workman had remained unemployed during the period he remained out of service.

In this regard, reference may be made to the decisions of the Hon''ble Supreme Court in U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , Reetu Marbles Vs. Prabhakant Shukla, and Metropolitan Transport Corporation Vs. V. Venkatesan, wherein it had been observed that the back wages could be awarded to the workman even in the absence of a specific assertion that he had not been gainfully employed during the period he remained out of service. The Labour Court had overlooked certain peculiar and uncontroverted facts of the case i.e. the petitioner having been appointed as Peon on 19.8.1988 and his services having been dispensed with on 1.4.1994. The petitioner had challenged such termination which led to the passing of an award dated 14.2.1997 in his favour whereby he was held entitled to re-instatement in service with all service benefits. However, workman/petitioner was not permitted to join back for a considerable length of time. Ultimately, he joined his post of Peon in pursuance to the award dated 14.2.1997, on 26.2.1998. Thereafter, his services were again dispensed with on 12.8.1998 and which action had been held to be without due sanction of law and in violation of the provisions of the Industrial Disputes Act in the light of the award dated 11.2.2009, Annexure P2.

Under such facts and circumstances, this Court is of the considered view that the interest of justice would be sub served if the petitioner is directed to be paid 50% of the back wages for the period in question i.e. from 12.8.1998 i.e. the order of termination till 11.2.2009 i.e. the date of passing of the award.

Accordingly, the writ petition is partly allowed. The award dated 11.2.2009 passed by the Presiding Officer-cum-Labour Court-I, Gurgaon, Annexure P2, is modified to the extent of enhancing the award of back wages upon re-instatement of the petitioner from 30% to 50% for the period in question i.e. 12.8.1998 to 11.2.2009. Petition allowed in the aforesaid terms.