Civil Writ Petition No.18218 of 1991 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 14th February, 2011. Joginder Singh ....Petitioner Versus Presiding Officer, Labour Court, UT, Chandigarh & Others ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.H.K.Brinda Advocate for Mr.Dharam Pal Advocate for the petitioner. Nemo for respondent No.1. Mr.R.S.Rawat, AAG, Punjab for respondent Nos.2 and 3. M ehinder S ingh S ullar, J. (Oral) The contour of the facts, culminating in the commencement, relevant for disposal of the present writ petition and emanating from the record, is that petitioner Joginder Singh-workman (for brevity “the workman”) was employed as Conductor with the management of Punjab Roadways Depot Chandigarh (for short “the management”) before his services were stated to have been illegally terminated by the management, without holding a proper and fair inquiry vide order dated 30.03.1987. The departmental appeal was also dismissed by Divisional Manager (respondent No.3), by virtue of order dated 01.03.1988. The workman raised an industrial dispute, in view of the provision of The Industrial Disputes Act (hereinafter to be referred as “the Act”) by issuing a demand notice dated 07.09.1988. The respondent-State of Punjab referred the matter for adjudication to the Presiding Officer of Industrial Tribunal-cum-Labour Court. 2. In pursuance of the reference order, the petitioner filed his claim petition inter-alia pleading that his services were illegally terminated by the management, without any legal and valid inquiry; no adequate opportunity of being heard was provided to him and impugned termination order and appellate Civil Writ Petition No.18218 of 1991 2 order were stated to have been passed without application of mind by the relevant authorities. On the basis of aforesaid allegations, the workman challenged his order of termination and prayed for reinstatement with full back wages in this context. 3. The management contested the claim of the workman and filed the written statement, in which, it was pleaded that the inquiry has been conducted against the workman in a lawful manner and his services were rightly terminated. It will not be out of place to mention here that the management has stoutly denied all other allegations contained in the claim statement and prayed for dismissal of the reference petition. 4. Controverting the allegations contained in the written statement of the management and reiterating the pleadings of the statement of claim, the workman filed the replication. 5. In the wake of pleadings of the parties, the Labour Court framed the following issues for proper adjudication of the case:- 1. Whether the services of the workman were terminated so, to what effect and to what relief, he is entitled to, if any? OPW. 2. Relief. 6. The parties, in order to substantiate their respective stands, produced the evidence on record. Taking into consideration the entire evidence on record, the Labour Court reinstated the workman with continuity of service, but without back wages, by virtue of impugned award dated 01.10.1990 (Annexure P1). 7. Although, the management did not challenge the reinstatement, but the workman did not feel satisfied with the impugned award, as regards the non- grant of back wages, by the Labour Court, is concerned and preferred the instant writ petition, challenging the impugned award (Annexure P1) to that extent, invoking the provisions of Articles 226 and 227 of the Constitution of India in this regard. 8. Having heard the learned counsel for the parties, having gone Civil Writ Petition No.18218 of 1991 3 through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be partly accepted in this respect. 9. As is evident from the record that although the workman has specifically claimed his reinstatement, with continuity of service and full back wages, but he was reinstated without any back wages by the Labour Court. The Labour Court has declined the back wages to the workman without assigning any cogent reason and simply mentioned that he was not inclined to grant any back wages. 10. Above being the position on record, now the core controversy that arises for determination in the instant petition is, as to whether the workman is entitled to back wages, if so, to what extent? 11. It is a matter of fact that neither, there is any statutory law nor any straight-jacket formula can be evolved, in calculating/awarding the back wages to a workman in such a situation. The problem has to be approached, taking into consideration the totality of the facts and circumstances of each case and enabling provisions of the Act. In the same sequence, it cannot possibly be denied that the element of discretion and some judicial guess work has also to be applied in this relevant connection. 12. Having regard to the rival contention of learned counsel for the parties, to me, the workman is entitled to 50% of the back wages during the period he remained out of the job w.e.f from the date of termination of his service till he was reinstated and joined his service, in pursuance of award (Annexure P1) of the Labour Court. 13. What is not disputed here is that the matter is not rest integra but is well settled. An identical question arose before this court in case Nirmal Singh son of Surjan Singh Vs. Labour Court, Bhatinda and others Civil Writ Petition No.6611 of 1991 decided on 25.01.2011. Having considered the enabling Civil Writ Petition No.18218 of 1991 4 provisions of Sections 11A and 17B of the Act and the judgments of Hon'ble Apex Court in cases U.P.State Brassware Corpn. Ltd. Vs. Uday Narain Pandey (2006) 1 S.C.C. 479, P.V.K.Distillery Ltd. Vs. Mahendra Ram (2009) 5 S.C.C. 705 and HUDA Vs. Om Pal (2007) 5 S.C.C. 742, it was ruled that under such circumstances, the workman is entitled to 50% of his wages. 14. The ratio of the law laid down in Nirmal Singh's case (supra) “mutatis mutandis” is applicable to the facts of the instant case and is the complete answer to the problem in hand. Therefore, to me, the Labour Court has slipped into legal error and wrongly negatived the entire claim of back wages of the workman in this relevant direction. To that extent, the impugned award (Annexure P1) deserves to be modified in the obtaining circumstances of the case. 15. In the light of the aforesaid reasons, the instant writ petition is partly accepted. Consequently, the workman is held entitled to half of the back wages during the relevant period. To that extent, the impugned award (Annexure P1) is hereby modified in the manner indicated here-in-above. (Mehinder Singh Sullar) February 14, 2011 Judge AS Whether to be referred to reporter? Yes/No