[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 4166 of 2014 in/and [CASE NUMBER] Date of decision: 07.04.2014 [ENTITY] Petitioner(s) Versus [ENTITY] and others Respondent(s) CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA Present: Mr. [ENTITY], Advocate, for Mr. [ENTITY], Advocate, for the petitioner. Mr. [ENTITY], AAG, Haryana. G.S.SANDHAWALIA, J. (Oral)
The present application has been filed for hearing the main case on some actual date.
The application is allowed.
With the consent of counsel for the parties, the main case is taken up for hearing today itself.
Challenge in the present writ petition is to the award dated 21.10.2003 (Annexure P-5) passed by the Labour Court, Hisar whereby, he was directed to be reinstated with continuity and all consequential service benefits but without back wages. The workman thus is only aggrieved against non-grant of back wages. The period of service of the workman who was a daily wager was from September, 1995 to August 1996. The Labour Court denied him the back wages on the ground that he was a daily wager and not entitled for the back wages. The relevant observations read thus:-
"In the light of above discussion, it is amply established that the continuous (service of the claimant had been terminated without any notice or compensation. Hence the termination of services of Sh.[ENTITY] was neither in order, nor justified. He is entitled to reinstatement with continuity of service alongwith all other consequential service benefits. Since the claimant had worked for a period short period of one year with the respondent, and moreover being daily wager, he is not entitled for back wages. All these issues are hereby answered accordingly in favour of the workman and against the respondents.
The sole issue thus arises is whether the petitioner is entitled for the back wages from the date of his termination from August, 1996 to the date of his reinstatement. Though the petitioner in his claim petition has averred that he was unemployed but there is no whisper in the writ petition as to whether he deposed regarding this fact. The grant of back wages is not an automatic consequence as has now been held by the Apex Court and would depend upon the facts and circumstances of each case.
In the present case, the workman was a daily wager and would have continued working at some other place during the period he was kept out of service by the respondent-department. The Apex Court in [PRECEDENT] has held that the workman has to at least aver and state on oath that he was neither [ENTITY] employed nor engaged in gainful business and then the burden would shift upon the employer. The relevant observations read thus:-
"18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in [PRECEDENT] (supra) and [PRECEDENT] (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may."
As noticed above, in the present case, nothing has been brought on record to show that there was any averment on affidavit before the Labour Court to say that the petitioner was unemployed from the date of his termination till his reinstatement.
Accordingly, this Court is of the opinion that in view of the above peculiar facts and circumstances of the case, no relief can be granted to the petitioner. It is also settled principle of law that this Court, while exercising jurisdiction under [SECTION] of the [ACT], would only correct an error which is manifest and apparent on the face of the record and is not to convert itself into a Court of Appeal and substitute the order of the Labour Court. The said view was reiterated by the Supreme Court in [PRECEDENT] while placing reliance upon the judgment in [PRECEDENT].
Accordingly, the award passed by the Labour Court cannot be held to be unjustified and the present petition is dismissed.
07.04.2014 ([ENTITY]) [ENTITY] JUDGE