C.W.P. No. 3753 of 2010 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 3753 of 2010 Date of Decision: Sept. 23,2011 The Shahabad Primary Agricultural Co-operative Society Ltd. .................................. Petitioner Versus Presiding Officer Labour Court, Ambala and another ..................................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. C.R.Dahiya, Advocate for the petitioner. Mr. Rajesh Arora, Advocate for respondent No.2. ... RITU BAHRI, J. Challenge is to the award dated 23.4.2009 (Annexure P2) passed by the Labour Court whereby the workman has been reinstated with continuity of service and full back wages. The workman was terminated from service on 13.6.1980 while working with the Shahbad Primary Agricultural Co-operative Society Ltd. as Accounts Clerk. The C.W.P. No. 3753 of 2010 [ 2 ] workman had raised an industrial dispute which was decided in his favour. The award of the Labour Court was challenged by filing C.W.P. No. 1462 of 1990. This writ petition was dismissed vide order dated 23.8.2006. In L.P.A. the matter was remanded back to the Labour Court vide order dated 10.1.2008. The Labour Court while deciding the Reference has reinstated the workman. Mr. C.R.Dahiya, learned counsel for the petitioner, has argued that the workman has not led any evidence to prove that he was not gainfully employed. The award to the extent of full back wages and continuity of service is liable to be set aside. The workman was terminated in the year 1980 and has been out of service for almost 29 years. The petitioner is a Co-operative Society and will be unnecessarily burdened for payment of full back wages when the workman had not led any evidence before the Labour Court that he has not gainfully employed. It is difficult to believe that after termination of his services, he was not gainfully employed. Mr. C.R.Dahiya has referred to the judgment of the Supreme Court in Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta (2009) 16 SCC 562 to contend that an industry should not be compelled to pay to the workman for the period during which he apparently contributed a little or nothing at all and that reinstatement with full back wages should not be automatic for a wrongful termination. C.W.P. No. 3753 of 2010 [ 3 ] Mr. Rajesh Arora, learned counsel for respondent No.2, has argued that the workman was terminated on 13.6.1980. An award was passed in his favour on 23.4.2009. The writ petition against the award was dismissed but in the L.P.A. the matter was remanded back vide order dated 10.1.2008 to enable the Management to adduce fresh evidence. However, no fresh evidence was led by the Management. When MW4 Shri Jasbir Singh was recalled, he conceded that whatever he had deposed in the Court on 28.1.2003 the report Ex.MW3/1 was tendered by him which was part of the record when the award was passed in his favour earlier. No fresh document was placed on record and the claim statement was to be decided by the Labour Court on the evidence which was led earlier. The respondent Management had examined MW3 Shri Sham Singh who stated that the charge-sheet was sent at Jagadhri whereas the workman was residing in Shahbad. The Management was unable to prove any charge levelled against the respondent workman. Out of the 9 charges in the charge- sheet, the Management witnesses MW1 and MW2 did not state any thing regarding charges No. 1 to 6, 8 and 9. MW2 Ram Singh, District Manager Hafed, had deposed regarding charge No.7. None of the allegations have been proved by the Management. On the question of full back wages, the workman is entitled to full back wages as he had been C.W.P. No. 3753 of 2010 [ 4 ] receiving the payment under Section 17-B of the Industrial Disputes Act when the writ petition was pending in this Court since 1990. Petitioner had given his affidavit that he was not gainfully employed. Heard learned counsel for the parties. The workman had put in 11 years of service when he was suspended. The allegations were that he had indulged in corrupt practices and consequently he was issued charge-sheet. His services were terminated on 13.6.1980. The Labour Court vide award dated 23.4.2009 had reinstated the workman with back wages. This award was challenged by way of C.W.P. No. 1462 of 1990 before this Court. This writ petition was dismissed on 23.8.2006. The Society preferred a L.P.A. which was allowed and the matter was remanded back to the Labour Court vide order dated 10.1.2008 to enable the petitioner Society to adduce fresh evidence. However, no fresh evidence was led by the Management. The Management relied on the statement made by MW4 Shri Jasbir Singh who reiterated his statement made earlier on 28.1.2003. He tendered the report Ex.MW3/1. The Management could not prove that the charge-sheet had been duly served upon the workman. MW4 had conceded before the Labour Court that the charge-sheet was sent at Jagadhri whereas the workman was residing at Shahbad. The workman was charge-sheeted for 9 charges in C.W.P. No. 3753 of 2010 [ 5 ] the charge-sheet Ex.MW3. Before the Labour Court the witnesses examined by the Management MW1 and MW2 did not state any thing regarding charge No.1 to 6, 8 and 9. As far as charge No.1 related to physical verification of the stock held by the workman-Satpal. The Management witnesses MW1 Shri Rati Ram, Assistant Hafed Kurukshetra, could not state that he had verified the stock personally. No inquiry was placed on the file. Despite the opportunity given by the L.P.A. Bench to lead fresh evidence when the inquiry file was not placed on the record of the Labour Court. The award of the Labour Court that the services of the workman were terminated illegally is upheld. Vide judgment of the Supreme Court in Uttar Pradesh State Electricity Board's case (supra) compensation of ` 7 lacs had been given to the workman where he had put in 2 years of service as a purely temporary employee and thereafter his services have been terminated. The workman had raised an industrial dispute after 10 years of termination of his service. In that case, the Supreme Court had modified the relief of reinstatement with full back wages and restricted it to `7 lacs as compensation. In the facts of the present case, no proper inquiry was held against the respondent-workman who had put in 11 years of service before he was terminated on 13.6.1980. The petitioner has been out of service since 30.6.1980 for almost 20-23 years. There was no delay on the C.W.P. No. 3753 of 2010 [ 6 ] part of the workman to raise a demand notice. The petitioner has been getting the benefits of Section 17-B during the pendency of the Writ Petition No. 1462 of 1990 before this Court. Apparently, he has contributed little or nothing at all to the petitioner Society. It is difficult to believe that the petitioner was not employed for the last 20- 23 years elsewhere. The writ petition is partly allowed. The award is modified by directing to reinstate the petitioner-workman with continuity in service and 50% back wages. 23.9.2011 ( RITU BAHRI ) Rupi JUDGE