IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.3676 of 1985 Date of Decision:08.09.2008 Kashmir Singh through his legal representatives, (i) Sawinder Kaur (widow); and (ii)Hardip Singh (son) .....Petitioners Vs. State of Punjab and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Ms. Deepinder Kaur, Advocate for the petitioner. Mr. Vijay Kumar Chaudhary, AAG, Punjab. **** HARBANS LAL, J. This petition has been filed by Kashmir Singh for quashing part of the award Annexure P.1 whereby full backwages were not awarded to him. The brief facts giving rise to this petition are that the petitioner was employed with the respondents since 1.9.1962 at a monthly salary of Rs.640/-. As alleged, he had absented himself from duty. He was called upon to resume his duty by issuing notices as well as by way of publication in the newspaper. Despite that he did not join his duty. Eventually, his services were terminated without serving notice, charge-sheet and without holding enquiry. The matter was referred to the Labour Court. The following issue was framed by the Labour Court:- “Whether any valid departmental enquiry was held against the workman and that as such, termination of his services is justified and in order?” After examining the record and hearing the representatives of the parties, the labour Court vide impugned order directed the respondent to reinstate the workman- petitioner with continuity of service with a further observation that the workman shall be deemed to be on leave of the kind Civil Writ Petition No.3676 of 1985 -2- due to him during the period of his unemployment and he will report for duty to the respondent within 20 days from the publication of the award. In the written statement, the respondent- State has inter-alia pleaded that this petition is belated one and suffers from laches because the award was passed on 8.9.1983 whereas this petition has been filed on 26.4.1985, i.e., after more than one and a half years. The petitioner absented himself from duty. The notices were sent at his home address. The publication was also got made in the newspapers. Inspite of that he did not resume his duty. Ultimately, his services were terminated. The Labour Court has rightly denied the backwages on the principle of `No Work No Pay'. This petition may be dismissed. I have heard the learned counsel for the parties, besides perusing the findings returned by the learned Presiding Officer of the Labour Court with due care and circumspection. Ms. Deepinder Kaur, Advocate appearing on behalf of the petitioner eloquently urged that the petitioner has been unlawfully deprived of his full back-wages albeit the Labour Court itself has observed that the mere fact that the workman had willfully absented from duty could be held as no ground to dispense with the holding of the departmental inquiry as envisaged by the aforesaid statutory rules and the services of the workman were thus terminated without complying with the statutory provisions and such a termination cannot be held to be justified. Mr. Vijay Kumar Chaudhary, learned Assistant Advocate General, Punjab on behalf of the State countered these arguments by urging that in re: Rajender Singh R. v. Depot Manager, Andhra Pradesh State Road Transport Corporation, 2000(3) Service Cases Today 1, the Apex Court has laid down that the workman would not Civil Writ Petition No.3676 of 1985 -3- be entitled to backwages and that being so the learned Labour Court has rightly disallowed the backwages to the petitioner. I have given a deep and thoughtful consideration to the rival contentions. In re: U.P. State Brassware Corporation Limited and another v. Uday Narain Pandey, (2006) 1 SCC 479, the Apex Court has laid down as under:- “A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/ or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of entire back wages should be Civil Writ Petition No.3676 of 1985 -4- allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence. Although earlier the Supreme Court insisted that it was for the employer to raise the plea that the workman was not gainfully employed during the period for which back wages are claimed but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. The respondent workman did not plead that he after his purported retrenchment was wholly unemployed. The respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. As the question as regards termination of service of the respondent by the appellant is not in issue it will be assumed that the services of the respondent were terminated in violation of Section 6-N of the U.P. Industrial Disputes Act. Furthermore the establishment of the appellant wherein the respondent could be directed to be reinstated had been sold on 26-3-1993. In that view of the matter, Section 6-O of the U.P. Civil Writ Petition No.3676 of 1985 -5- Industrial Disputes Act would apply in terms whereof compensation will be payable in the same manner as if he was retrenched under Section 6-N thereof. The decision to close down the establishment by the State of Uttar Pradesh like other public sector organisations had been taken as far back as on 17.11.1990 wherefor a GO had been issued. It had further been averred that the said GO has substantially been implemented. In this view of the matter interest of justice would be subserved if the back wages payable to the respondent for the period 1-4-1987 and 26-3- 1993 that is, from the date of his deemed illegal retrenchment to the date of closure of the undertaking, is confined to 25% of the total back wages payable during the said period and compensation payable in terms of Section 6-N of the U.P. Industrial Disputes Act.” In paragraph No.3 of the judgment rendered by the Apex Court in re: Rajender Singh R. (supra), it has been observed that “having regard to the nature of the charges, learned counsel for the respondent has very fairly stated that the Corporation, on the facts and circumstances of the present case, would have no objection to grant continuity of service to the appellant so long as he does not insist on backwages, which is agreeable to the appellant. Even otherwise, on the facts of the case, we find no justification to deprive the appellant, the continuity of service”. Thus, ostensibly in view of the above submission the petitioner was deprived of the backwages. Here in this case, the learned Presiding Officer of the Labour Court has observed in paragraph No.7 of the impugned award as Civil Writ Petition No.3676 of 1985 -6- under:- “The workman is admittedly governed by the Punjab Civil Services (Punishment and Appeal) Rules, 1970. Rule 5 of the said Rules prescribes the penalties which can be imposed upon the delinquent official. The removal of Government employee from service has been calssified as a major penalty. As per the provisions of Rule 8(1) of the said Rules, such a penalty could be imposed upon the workman after holding an enquiry in the manner provided in Rules 8 and 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. These provisions are mandatory in nature. It is thus manifest that such a major penalty could never be imposed upon the workman without holding departmental enquiry against him. In case the workman had not turned up despite publication of the notices against him then ex parte proceedings could be recorded against him while holding the departmental enquiry by the duty appointed Enquiry Officer. The mere fact that the workman had wilfully, absented from duty could be held as no ground to dispense with the holding of the departmental enquiry as envisaged by the aforesaid statutory Rules. The services of the workman were thus terminated without complying with the statutory provisions. Such a termination, therefore cannot be held to be justified. It appears from these observations that the services of the petitioner were terminated without having recourse to the Service Rules, governing the petitioner. Startlingly enough that without holding enquiry Civil Writ Petition No.3676 of 1985 -7- contemplated by the afore quoted Service Rules, major penalty was inflicted upon the petitioner, though the allegations against him were that he had merely absented himself from the duty. However, in view of the observations rendered in re: Uday Narain Pandey (supra), it was obligatory upon the workman- petitioner to have disclosed the period during which he remained gainfully employed. He has not raised any plea that he was not gainfully employed during the period for which full backwages are being claimed by him. The petitioner's services were terminated without holding inquiry. In the factual scenario, it is held that legal representatives of the deceased- petitioner will be entitled to get 25% of the backwages from the date of his termination till his reinstatement except the period, if any, during which he remained gainfully employed. The amount found due shall be disbursed to the legal representatives of the deceased within four months from the date of receipt of certified copy of this judgment. The impugned award is modified to the stated extent. Accordingly, this petition is disposed of. September 08, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No