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Judgment
V.K. Ahuja
This common judgment will dispose of all the above titled writ petitions. The petitioner(s) has filed the present writ petition under Article 226/227 of the Constitution of India, for quashing of Award dated 30.10.2008, passed by the Presiding Judge, Labour Court -cum -Industrial Tribunal, Dharamshala, District Kangra, H.P., vide which the Court had directed that respondent No. 1 is entitled to re-instatement with 50% back-wages.
The details of the cases mentioned above are as under:
CWP No.
Name of respondent No. 1.
Period during which he worked on daily wages
132/2009
Shri Ravi
November, 1997 to
15.8.2002(as Beldar)
135/2009
Shri Om Prakash
April, 1998 to 9.7.2002 (as Mason)
136/2009
Shri Baboo Ram
April, 1997 to 15.8.2002(as Mason)
138/2009
Shri Laxman
May, 1998 to 9.7.2002(as Beldar)
139/2009
Shri Desh Raj
April, 1999 to 9.7.2002(as Beldar)
140/2009
Shri Ashok Kumar
April, 1998 to 15.8.2002(as Beldar)
141/2009
Shri Girdhari Lal
March, 1999 to
9.7.2002(as Beldar/Mason)
163/2009
Shri Kamal Kishore
April, 1997 to 15.8.2002(as Beldar)
164/2009
Shri Gahlo Ram
April, 1998 to 15.8.2002(as Beldar)
165/2009
Shri Subhash Raj
May,1999 to 9.7.2002(as Beldar)
166/2009
Shri Ashok Kumar
April, 1998to 15.8.2002 (as Beldar)
Respondent No. 1 was engaged as daily waged Beldar by the petitioner in November, 1997 and he worked as such upto 15.8.2002. The services of respondent No. 1 were terminated by the petitioner by serving him notice on 16.7.2002, as also to respondent No.1 in above mentioned writ petitions on 10.6.2002, 16.7.2002, 10,6,2002,10,6,2002, 16.7. 002, 10.6.2002, 16.7.2002, 16.7.2002, 10.6.2002 and 16.7.2002 respectively, u/s 25F of the Industrial Disputes Act. The petitioner approached the erstwhile State Administrative Tribunal, who passed the following order:
Consider the applicant for re-engagement as and when the work and funds are available in accordance with the seniority of the applicant and the law applicable thereto.
Thereafter, the petitioner filed the petition which was referred to the learned Labour Court, who passed the order directing the petitioner to re-instate respondent No. 1 and he was also held entitled to 50% back wages.
A notice of the petition was issued to respondent No. 1.
I have heard the learned counsel for the parties and gone through the records.
The case of the petitioner is that since respondent No. 1 was employed for a specific work, which was not continuing, therefore, his services were terminated. This plea has been considered by the learned Labour Court in Para-14 of the Award and the Labour Court had referred to this plea taken by the petitioner that due to non-availability of work and funds, the retrenchment notice was issued to respondent No. 1. Accordingly, it was held by the learned Labour Court that the termination of services of respondent was not proper and justified.
During the course of arguments, it has been submitted by the learned counsel for the petitioner that there is no work available with the petitioner and accordingly a notice of retrenchment was issued. However, it was admitted during the course of arguments that in the notice Annexure A-1,the back-wages payable to the petitioner were not calculated as required u/s 25F of the Industrial Disputes Act i.e. 15 days average pay for each completed year of continuous service or part thereof in excess of six months. Therefore, notice issued to respondent No. 1 was defective since all the back-wages were not calculated and mentioned in the notice issued to him and simply it was mentioned that he should calculate compensation which was not quantified as required u/s 25F of the Industrial Disputes Act.
The respondent was entitled to 15 days average pay for each completed year of continuous service and the same shall be payable to the respondent, which shall be calculated by the petitioner and the calculation shall be placed on record so that the amount payable to respondent No. 1 is paid out of 50% back-wages already deposited by the petitioner. This compliance shall be made within a period of four months from today.
In regard to the re-instatement, the petitioner having failed to prove that no work was available or that respondent No. 1 was employed for a specific work and funds were exhausted, therefore, steps shall be taken for re-instatement of respondent No.1, as against the available work with the petitioner within a period of two months from the date of supply of the copy of this judgment to the petitioner. The orders shall be complied with accordingly by the petitioner.
In regard to the question as to whether the respondent (s) are entitled to back-wages, learned counsel for the petitioner has relied upon the decision rendered in Kanpur Electricity Supply Co. Ltd. Vs. Shamim Mirza, . The observations made in paras 29 and 30 are relevant, which are being reproduced below:
It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back wages, which is independent of reinstatement. While dealing with the prayer for back wages, factual scenario, equity and good conscience and a number of other factors, like the manner of selection; the nature of appointment; the period for which the employee has worked with the employer etc.; have to be kept in view. All these factors are illustrative and no precise formula can be laid down as to under which circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case.
In Haryana Roadways v. Rudhan Singh a three-Judge Bench of this Court has observed that there cannot be a straitjacket formula for awarding relief of back wages and an order of back wages should not be passed in a mechanical manner. It has been held that a host of factors, like the manner and method of selection and appointment; the nature of appointment, namely, whether ad hoc, short-term, daily wage, temporary or permanent in character; and the length of service, which the workman had rendered with the employer are required to be taken into consideration before passing any order for award of back wages. (See also Haryana State Electronics Development Corpn. Ltd. v. Mamni, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey and U.P. SRTC v. Mitthu Singh.)
Learned counsel for the petitioner had also relied upon another decision rendered in M.D., Balasaheb Desai Sahakari S.K. Ltd. Vs. Kashinath Ganapati Kambale, n regard to burden of proof. The observations made in Paras 13 and 14 are relevant, which are being reproduced below:
It is well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of the Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant. Some materials had been brought on record to show that the respondent was gainfully employed. The evidence adduced on behalf of the appellant had not been considered in its proper perspective. The Industrial Court while holding that no licence is necessary to run a footwear shop in a small town committed a serious illegality in arriving at this finding that the respondent must have been doing so to meet his both ends. It may be correct that a person cannot afford to remain unemployed for a long time but for arriving at a conclusion that the respondent was gainfully employed or not, a large number of factors are required to be taken into consideration.
No affidavit had been filed by respondent No. 1 that he was not gainfully employed during this period and as such he was entitled to payment of back wages. The back wages cannot be awarded until or unless the some facts are not brought on record to show that respondent No. 1 was not gainfully employed and such order for granting back wages of 50%, was awarded by the learned Labour Court.
During the course of submissions, my attention has been drawn to the decision of a Division Bench of this Court passed in Executive Engineer, HPPWD, Dharampur Division versus Dhani Ram, Latest HLJ 2010(HP) Vol.2,972. After considering the claim of the claimants for 50% back wages, as ordered by the Labour Court, the Division Bench ordered that a sum of Rs. 50,000/- shall be payable to the claimant in lump sum. Following the above decision, I accordingly direct the petitioner to pay a sum of Rs. 50,000/- to the claimant (s) in lump sum in lieu of the back wages as awarded by the learned Labour Court. The payment shall be made within a period of three months from today.
In case respondent No. 1 is employed and the question of seniority or past service rendered by him comes in to plea, the same shall be considered by the petitioner keeping in view the past service rendered by him. In view of the above discussion, the writ petition (s) filed by the petitioners are allowed partly, as detailed above. Pending application(s), if any, shall also stand disposed of. August 08, 2012