Civil Writ Petition No.3953 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3953 of 2007 Date of decision: March 12, 2008 Divisional Forest Officer, Territorial, Kurukshetra and another … Petitioners Versus Dharmvir and another … Respondents CORAM: HON’BLE MR. JUSTICE ASHUTOSH MOHUNTA HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sunil Nehra, Assistant Advocate General, Haryana Mr. Deepak Balyan, Advocate for respondents. KANWALJIT SINGH AHLUWALIA, J. Divisional Forest Officer, Territorial Kurukshetra along with Range Forest Officer, Pehowa, Kurukshetra had filed present writ petition to assail the award dated 16.01.2006 (Annexure P-15) passed by the labour Court, Ambala. Workman (respondent No.1) had served the demand notice (Annexure P-1) on 12.12.2001, wherein he stated that he was appointed as mali-cum-beldar in the year 1990 through employment exchange, Kaithal by the then, DFO Social Forestry Project, Kurukshetra and he was deputed to work in the Social Forestry Range, Pehowa having jurisdiction at Kaithal district. It has been further stated that later in the year 1999, the establishment of Kurukshetra Division of Social Forestry Project was merged in the Division of Social Forestry Project, Ambala. It has been further stated by the workman (respondent No.1) that he worked till 31st August, 2000 and from the period January 1990 to August 2000. The Civil Writ Petition No.3953 of 2007 2 workman had served for more than 240 days continuously in the last preceding 12 months, from the date of alleged termination. Learned labour Court held that it is in dispute on the record of the file that the workman (respondent No.1) did work on daily wages basis as a labourer for a period from the year 1990 till August 2000. It further held that stand of the respondent that the workman had not worked for 240 days stands contradicted by their own document, and held as under: “……but even this stand of the respondents stood contradicted by their own document i.e. Ex.M21 which is a later dated 22.8.2000 written by the Pehowa Range to the Deputy Conservator of Forests, Range Kurukshetra, wherein the Pehowa Range of the respondents itself has stated intimated to the Deputy Conservator of Forests. Range Kurukshetra that as many as 16 workers including the petitioner Dharamvir S/o Phulu as depicted in the said letter at Sr. No. 9 had completed 240 days of work in the last several many years and that as per the instructions of the higher authorities they could not be removed from the work. It was further requested by the Pehowa Range in the said letter Ex.M21 that the aforesaid workers be distributed/ posted deputed in different ranges or as the competent authority aforesaid deemed fit.” Now various documents have been annexed with the present petition to assail finding of fact recorded by the learned labour Court calling upon us to hold that workman (respondent No.1) had not completed 240 days. We are afraid, in a writ petition we cannot set aside the finding of fact recorded by the labour Court, who after examining the evidence had arrived at the just conclusion. Since it is admitted stand of the petitioners that the workmen (respondent No.1) was recruited by the petitioner after giving due opportunity in the public and his name was requisitioned through employment exchange, we uphold the award (Annexure P-15). It has been further prayed before us that the learned labour Court committed a grave error to reinstate the workman Civil Writ Petition No.3953 of 2007 3 (respondent No.1) along with all consequential service benefits including continuity of service and full back wages. We have heard learned counsel for the parties on the question of validity of award of back wages. We find that in a recent judgment in J.K.Synthetics Ltd. v. K.P.Agrawal, (2007) 2 SCC 433, the Hon’ble Supreme Court has noticed the change in law, which has taken place on the issue. It has been held that back wages is no longer automatic or natural consequences of reinstatement. A pragmatic view has to be taken keeping in mind that industry may not be compelled to pay for the period for which the workman did not contribute anything. Each case depends on its own facts. Length of service, nature of appointment, manner of termination, gainful employment and other circumstances have to be considered. Short term or temporary employment cannot be treated at par with termination of services of a permanent employee. The burden of proving that the workman was not gainfully employed, was on the workman. Applying the above principles to the facts of the present case, we are of the view that workman (respondent No.1) is not entitled to full back wages. However, interest of justice will be met in case, back wages are reduced to 50 per cent. Hence, we uphold the award (Annexure P-15) with the modification that the workman (respondent No.1) will be entitled to 50 per cent back wages. With these modifications, present writ petition is dismissed. [Ashutosh Mohunta] Judge [Kanwaljit Singh Ahluwalia] Judge March 12, 2008. rps