L.P.A.No.638 of 1992 in / and 1 CWP No.1646 of 1990 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A.No.638 of 1992 in / and CWP No.1646 of 1990 Date of Decision : 15.05.2009 Shri Bhawani Cotton Mills ...Petitioner/appellant and Industrial Limited, Abohar. Versus The State of Punjab and others ...Respondents CORAM:HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA Present: None for the appellant. Mr. H.S.Sidhu, Addl. AG, Punjab. Mr. N.D.Kalra, Advocate, for respondent No.2. Hemant Gupta, J. This order shall dispose of CWP No.1646 of 1990 filed by Shree Bhawani Cotton Mills and Industries Limited, Abohar (hereinafter referred as 'the Management'), seeking quashing of the award (Annexure P-7) dated 19.5.1987 published on 22.12.1989. This order shall also dispose of LPA No.638 of 1992 filed by the Management against an order passed by the learned Single Judge on 5.2.1992 directing the Management to pay last drawn wages to respondent No.2 in terms of Section 17-B of the Industrial Disputes Act, 1947, from the date of filing of the earlier Writ Petition No.6737 of 1987 by the Management. Shri Shiv Dutt-respondent No.2 in the writ petition (hereinafter referred to as 'the workman') raised an industrial dispute arising out of his alleged termination of service w.e.f. 5.10.1983, which was said to be L.P.A.No.638 of 1992 in / and 2 CWP No.1646 of 1990 without a charge-sheet, enquiry, notice or compensation. The workman claimed reinstatement with continuity of service and full back wages. As per the Management, the workman had been looking after the Cotton and Synthetic Section of the Mill for about six years. But all of sudden, he took the position that he was to look after only the Cotton Section. Since, the Management insisted that the workman should look after both the sections, the workman abandoned his job and later raised dispute, alleging termination of his services. On the other hand, the stand of the workman was that Management terminated his services on 5.10.1983 and he was not permitted to enter the Mill premises on 6th & 7th of the said month. The workman relied upon couple of letters to the Management claiming that his services have been terminated due to his trade union activities. Learned Labour Court found that the Attendance Register of the Mill, discloses that the workman was originally marked (Present) on 5th, 6th, 7th & 8th, but it was converted into 'A' (Absent) by overwriting. It was found that the workman had reported on duty on these dates, but the record was later altered on extraneous considerations. It was on 7.10.1983 the workman has written to the Management that he had been terminated from duty w.e.f. 5.10.1983 on account of his trade union activities. He has complained that he has been barred by the Management from Cotton Section and the Management has failed to give him any duty in the Synthetic Section of the Mill. Similar letters were written by him on 10.10.1983 (Ex.W/3) and 15.10.1983 (Ex.W/4). The learned Labour Court found that the Attendance Register was tampered L.P.A.No.638 of 1992 in / and 3 CWP No.1646 of 1990 with to convert the record of the presence of the workman into absence and that the service of the workman was in fact terminated. The letters (Exs.M/1, M/2 & M/3) calling upon the workman to resume his duties are clever ruse played on workman. It was also held that even if the workman has refused to work still his services could not be terminated except upon an enquiry i.e. on proof of misconduct. Such award was announced by the learned Labour Court on 19.5.1987, which was published only on 22.12.1989. Earlier the Management filed a writ petition against the unpublished award, which was withdrawn as pre-mature on 8.9.1988. The present writ petition was filed thereafter on 8.2.1990. The finding of the learned Labour Court that the stand of the Management that the workman has abandoned his job is based upon evidence on record. The Attendance Register has been found to be tampered with. The workman has made a grievance in respect of his prevention from entering the Mill premises. The alleged letters written by the Management have been considered by the learned Labour Court. After discussing the entire evidence, a finding of fact has been recorded that the workman has not abandoned his job and that the Management has terminated the services of the workman. Such finding of fact is based upon appreciation of evidence. There is no procedural illegality, irregularity or perversity in the order, which may warrant interference by this Court in exercise of power of judicial review under Article 226 of the Constitution of India. L.P.A.No.638 of 1992 in / and 4 CWP No.1646 of 1990 However, the learned Tribunal has ordered reinstatement with continuity of service with full back wages w.e.f. 5.10.1983. Learned counsel for the workman has made a statement in LPA No.638 of 1992 on 27.10.1998, restricting his claim to 50% of the back wages. That statement was reiterated on 9.11.1998 as well. In view of the above, the award of the Labour Court reinstating the workman with continuity of service and back wages from 5.10.1983 is modified so as to grant 50% of arrears of wages w.e.f. 5.10.1983. With the above modification in the award, writ petition No.1646 of 1990 stands dismissed. In Letter Patent Appeal, the grievance is that the Management cannot be made liable to pay wages under Section 17-B of the Act, when it filed Writ Petition No. 6737 of 1987 even before publication of the award. The learned Single Judge has granted the benefit of Section 17-B of the Act from the date of filing of the earlier writ petition. The award becomes enforcible only after its publication in terms of Section 17 of the Act. As the award was published on 22.12.1989, therefore, any action taken by the Management prior to publication of the award cannot be treated as a challenge to an enforceable award. It was only on 22.12.1989, the date of publication of the award, the workmen became entitled to reinstatement. Therefore, the benefit of Section 17-B of the Act would be available to the workman in a writ petition filed thereafter and not prior to the publication of the award. In view of the aforesaid fact, LPA No.638 of 1992 is allowed. The order passed by the learned Single Judge is modified, so as to grant benefit of Section 17-B of the Act from 8.2.1990 i.e. the date of filing of L.P.A.No.638 of 1992 in / and 5 CWP No.1646 of 1990 CWP No.1646 of 1990. With the said modifications, the writ and the appeal stand disposed of. (T.S.THAKUR) (HEMANT GUPTA) CHIEF JUSTICE JUDGE 15.5.2009 Vimal