IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4130 of 2010. Date of decision: 27.10.2010. The Executive Engineer Irrigation & Public Health ….. Petitioner. Vs. Narender Kumar …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioners : Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. A.G. and Mr. J.K. Verma, Dy. A.G. For the Respondents : Mr. G.R. Palsra, Advocate. Justice Kuldip Singh J. (Oral) The award dated 16.1.2010 passed by the Presiding Judge, Labour Court- cum- Industrial Tribunal (for short, the Tribunal), Dharamshala in reference No. 47/2006 has been assailed in the writ petition. The operative part of the award is as follows:- “Judged in the light of my finds on the issues above 1, particularly issue 1, the petition succeeds partly and is allowed in part. Accordingly, the petitioner is held entitled to reinstatement in the same capacity as in which he was working at the time his services were dispensed with. Besides, he is held entitled to continuity of service and 50% - 2 - back wages from the date of his unlawful retrenchment (August 17, 1998). The said 50% back wages shall be computed on the basis of the last drawn wage or the minimum wages permissible under the Minimum Wages Act whichever is higher till the date of reinstatement of the petitioner. The respondent is directed to re-engage the petitioner within a period of 90 days from today. The reference is answered accordingly. A copy of this award be sent to the appropriate Govt. for publication in the official gazette and to file after completion consigned to records.” 2. It has been submitted that learned Tribunal has erred in recording the finding that in terminating the services of respondent, Section 25(G) of Industrial Disputes Act, 1947 (for short, the Act) has been violated. It has also been submitted reinstatement and continuity of service w.e.f. 17.8.1998 ordered by the Tribunal alongwith 50% back wages is wrong and illegal. 3. The learned counsel for the respondent has supported the impugned award. He has submitted that on facts the learned Tribunal has recorded a finding that petitioner herein has violated Section 25(G) of the Act. The learned Tribunal in the facts and circumstances of the case has awarded 50% back wages alongwith continuity of service to respondent w.e.f. 17.8.1998. The discretion exercised by the Tribunal in awarding 50% back wages is just and equitable and this court in writ jurisdiction may not like to interfere with the discretion exercised by the learned Tribunal. 4. In the impugned award the learned Tribunal has considered the affidavit Ex. PW 1/A. The plea of the petitioner that - 3 - respondent had abandoned his job on 17.8.1998 has also been considered. Reply Ex. PW 1/B filed by petitioner herein to OA No. 59 of 1999 has also been considered, wherein no plea of abandonment had been taken. The man-days chart of respondent has also been considered. A finding has been recorded that Anita Devi and Mahesh, who were juniors to respondent were retained in service when the services of respondent were dispensed with. Thus on facts, the learned Tribunal has recorded a finding that petitioner has violated Section 25(G) of the Act while terminating the services of the respondent. Therefore, no fault can be found with this finding of the learned Tribunal. 5. In the impugned award after recording the finding that termination of services of respondent is in violation of Section 25(G) of the Act, the learned Tribunal has ordered that respondent is entitled to 50% back wages from 17.8.1998. In Kanpur Electricity Supply Company Limited vs. Shamim Mirza (2009) 1 SCC 20, it has been held as follows:- “It is true that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back-wages, which is independent of reinstatement. While dealing with the prayer of back- wages, factual scenario, equity and good conscience and a number of other factors, like the manner of selection; the nature of appointment; the period for which the employee has worked with the employer, - 4 - etc.; have to be kept in view. All these factors are illustrative and no precise formula can be laid down as to under what circumstances full or partial back- wages should be awarded. It depends upon the facts and circumstances of each case.” 6. The learned Tribunal has not recorded any reason for awarding 50% back wages to the respondent. The reinstatement of workman and award of back wages are independent . The Learned Tribunal has not pointed out why the respondent is entitled to 50% back wages. In absence of reasons in support of awarding 50% back wages, the same is not sustainable, therefore, to this extent the impugned award is liable to be set-aside. 7. In view of above, the petition is partly allowed and while affirming the impugned award of reinstatement of respondent in service w.e.f. 17.8.1998 with benefits of continuity of service including seniority, the impugned award allowing 50% back wages to respondent from 17.8.1998 is set-aside. The pending application (s), if any, stand also disposed of. (Justice Kurian Joseph), Chief Justice. October 27, 2010. (Justice Kuldip Singh), (Hem) Judge.