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Judgment
R.S. Dalvi, J.—The award of the Industrial Tribunal, Panaji, Goa dated 17.09.1999 is challenged in this writ petition. The respondent No. 3 was employed by the petitioner initially as a helper and later as a Beldar in ''C'' category on daily wages initially of Rs. 14.50, which was later increased to Rs. 16/- and thereafter to Rs. 25/- per day. The respondent No. 3 was employed from 01.01.1988. On 12.06.1992 he applied for leave to go to his native place in Bihar. He is thereafter stated to have fallen sick. He stayed for more than one month at his native place. He returned to Goa and reported to work only on 31.07.1992. He submitted his leave application alongwith the medical certificate. It was not accepted by the petitioner''s office. He was not taken back in service. He made a representation to the Worker''s Union. He was yet not taken back in service. He made a complaint to the Labour Commissioner, Panaji. The conciliation failed. His services stood terminated. He was not paid any compensation or given any notice or given any pay in lieu of notice. Hence the respondent No. 3 raised a Industrial dispute demanding reinstatement and other benefits. The dispute was referred to the Industrial Tribunal and the Industrial Tribunal passed an award on 11.09.1999. That award has been challenged.
The main contention of the petitioner is that the respondent is a project worker. The project for which he was employed has been completed. Hence he could not be reinstated. The petitioner contended that consequently his name was struck off as workman.
The petitioner is an undertaking of the Government of Uttar Pradesh. The project on which the respondent No. 3 inter alia worked was stated to be the new Mandovi Bridge over Mandovi river. That project is stated to be undertaken by the petitioner in 1987. The respondent No. 3 was employed on 01.01.1988. The Mandovi bridge was thrown open to the public on 23.06.1992. The respondent No. 3 reported for duty after his leave which was extended by him unilaterally from 31.07.1992. On 03.06.1992 when he applied for leave it was granted for 15 days till 26.06.1992. It is during this leave period that the project is stated to have been completed. The project was therefore at its fag end when the leave was applied for. It was completed before the leave period could be completed. The leave was for a fortnight. The leave was granted till after such period of the project. When the respondent No. 3 reported to work, the Assistant Engineer of the petitioner did not give him the work or has not issued any letter or report that the project having been completed, the services of respondent No. 3 was no longer required.
Under these circumstances, it is contended by the respondent No. 3 that the main case of the petitioner that the respondent No. 3 being a project worker is false. It is further contended that it is afterthought and has been taken up for the first time in the writ petition.
The impugned award would be required to be considered in this light. The evidence led by the respondent No. 3 as well as the petitioner has been annexed to the petition. The cross examination of the respondent No. 3 by the petitioner shows that when he reported for work, he met Mr. Punt, the Project Manager of the petitioner who told him to get out of his cabin. The evidence of the Deputy Project Manager examined by the petitioner shows that he was posted as Assistant Engineer at New Mandovi Bridge,Panaji until June 1990 and thereafter from June 1991 until June 1994 as Assistant Engineer. The relevant part of this evidence runs thus:
From June 1991 I was again transferred to new Mandovi bridge and worked there till June 1994 as Assistant Engineer
It is not understood how if the bridge was completed on 23.07.1992 he worked "there" till June 1994.
His evidence further shows that when the respondent No. 3 reported to work on 31.07.1992 he was told that the bridge was thrown open to the public on 23.07.1992 and hence his services were not required.
His cross examination shows that because the respondent No. 3 did not report for duty he was presumed to have left the services of his own. He was not given one months'' notice or retrenchment compensation. He was paid his wages from 30.06.1992 to 27.06.1992 in August 1992. He would be paid the amount contributed by him towards his provident fund.
Despite the evidence relating to the closure of the project of Mandovi bridge it has not been contention of the petitioner before the Industrial Tribunal that the respondent No. 3 was a project worker. The petitioners are a company which carries on construction of bridges and other constructions. They would therefore have several projects running from time to time. All of their workman would not be project workers. The petitioner as a Government undertaking would have permanent workers as well as temporary workers whose services may be required for different projects. If employment is made for a particular project alone, the employee would be a project worker. It would be for the petitioner to show that the respondent No. 3 was given the work only for the contract of new Mandovi bridge at Panaji, Goa.
The claim statement of the respondent No. 3 shows that the petitioners are engaged in the business of construction of bridges, roads, stadiums all over India as well as abroad. Their projects in India include construction of Indoor stadium, at Fatorda, Margao, Goa, new Mandovi bridge, bridge at Colvale, Siolim and Banastarim in Goa. He has inter alia stated that he was employed at the new Mandovi bridge site since 01.01.1988. He has not stated when he reported for duty and when he was told that his services were no longer required. The letter of the Union dated 17.08.1992 has neither been acknowledged or replied by the petitioner. His services were orally terminated without any show cause letter. It is sought to be contended by the petitioner that the statement of claim showing that he was employed at new Mandovi bridge itself shows that he was a project worker.
The entire evidence of the witness on behalf of the petitioner does not show this fact. The award has also not considered this fact. The petitioners have relied upon a case of Lal Mohammad and Others Vs. Indian Railway Construction Co. Ltd. and Others, holding that the worker working under a scheme or project have no vested right to claim regularization or regular pay scales and that when the project comes to an end, the services of such workers also comes to an end. Upon this contention, the case of the petitioner before the Industrial Tribunal would be required to be seen.
The fact therefore remains that the only Industrial dispute was that the respondent No. 3 was not given work when he reported to duty much after the period of leave without being given any retrenchment compensation, any notice of termination, any pay in lieu of such notice or any notice that his services have come to an end upon the project having come to an end. In view of absence of the case of the petitioner that the respondent No. 3 was a project worker, the award of the Industrial Tribunal granting reinstatement cannot be faulted.
The petitioners have also challenged the extent of back wages granted to respondent No. 3 under the impugned award. In the case Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma, it has been held that the employee must first show that he was not gainfully employed thereafter the employer would require to rebut such claim. It has been held that there is no straitjacket formula can be evolved for payment of back wages. Even in the case of J.K. Synthetics Ltd. v. K. P. Agrawal and Anr. AIR (2007) 2 Sc 433 relied upon by the petitioners, it is held that back wages have been computed depending upon the case. That case was for termination of services upon misconduct. Further in the case of General Manager, Haryana Roadways v. Rudhan Singh 2005 II CLR 1055 it has been held that the order of payment of back wages cannot be passed in a mechanical manner upon the termination held to be invalid. Various factors are to be taken into account. The workers who have been working for a short period only and on class IV post are not entitled to back wages. The facts have to be weighed and balanced. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at this age he may not be in a position to get another employment. Similarly temporary workers as daily wage earners would not be entitled for full back wages though he may have put in 240 days of service. As per these parameters, the award of the Industrial Tribunal granting 50% back wages will have to be seen.
The Industrial Tribunal has considered all facts and granted 50% back wages. There is nothing shown by the petitioners that the discretion for granting back wages to that extent is exercised perversely. The only case of the petitioner being that respondent No. 3 was a project worker and hence not entitled to anything. The order of the Industrial Tribunal granting 50% back wages also cannot be faulted.
The writ petition is dismissed. Rule discharged.