HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.3672 of 2011 (O&M) Date of Decision: 14.10.2011 **** M/s. Jain Textile Industries . . . . Petitioner VS. Presiding Officer, Labour Court-I, Gurgaon & Anr. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Mohak Bhadana, Advocate for the petitioner Mr. GS Bal, Advocate for respondent No.2 **** SURYA KANT J. (ORAL) (1). This petition is directed by the Management against the Award dated 08.06.2010 (Annexure P1) passed by the Industrial Tribunal-cum-Labour Court-I, Gurgaon reinstating the respondent-workman in service with 50% backwages. (2). The facts may be noticed briefly. The respondent- workman was appointed as a Boiler Attendant w.e.f. 01.01.1998 and served till 29.11.2003. The case of the workman was that his services were illegally terminated without paying retrenchment compensation w.e.f. the above mentioned date. CWP No.3672 of 2011.doc - 2 – (3). The petitioner-Management contested the workman’s claim inter alia averring that the workman was employed w.e.f. 06.03.1999 and not w.e.f. 01.01.1998. It was averred that since the workman was employed on temporary basis and his employment was extended from time to time, the protection of Industrial Disputes Act, 1947 (in short, ‘the 1947 Act’) was not available to him. (4). The Labour Court having found that the workman had served for more than 240 days preceding retrenchment, came to the conclusion that he could not have been thrown out of employment without complying with the mandatory provisions of the 1947 Act. The Management was accordingly directed to reinstate the workman with continuity of service along with 50% backwages after observing that the workman “remained unemployed after passing of order of alleged termination.” (5). The aggrieved Management has approached this Court. (6). An additional affidavit has been filed by the Management to contend that after termination of his services, the workman remained gainfully employed and as such there was no justification for the grant of 50% backwages. (7). I have heard learned counsel for the parties at some length and perused the record. There can indeed be no exception to the conclusion drawn by the Labour Court 2 CWP No.3672 of 2011.doc - 3 – that the workman having worked for more than 240 days continuously before his services were terminated was entitled to protection under Section 25-F and Section 25-G of the 1947 Act. It is an admitted fact that no retrenchment compensation was paid to the workman while retrenching him. The direction to reinstate the workman, in the facts and circumstances of the case, thus calls for no interference by this Court in exercise of its writ jurisdiction. (8). As regards the backwages, there appears to be some merit in the contention raised on behalf of the petitioner- Management that the 2nd respondent is a semi-skilled worker and there is every likelihood that he remained gainfully employed during the period when he was out of employment. The petitioner-Management’s plea stands substantiated by the office order dated 22.02.2006 issued by the Mehsana District Cooperative Milk Producers’ Union Ltd. appointing the respondent-workman as Boiler Attendant at IMT Manesar on probation w.e.f. 09.02.2006. The Assistant Manager (HR & ADM) of the above-stated Milk Producers’ Union (DP Rao) appeared as a Management witness and has proved the payment of salary to the 2nd respondent from the date of his appointment till June 2009. The above-stated 3 CWP No.3672 of 2011.doc - 4 – documentary proof, in my considered view, is sufficient enough to hold that the respondent-workman remained gainfully employed at least w.e.f. 09.02.2006 till his reinstatement. The Labour Court was not justified in overlooking such a material piece of evidence or to hold as if the workman remained unemployed during the interregnum. At the best it can be said that there is no proof of his gainful employment from December, 2003 till February, 2006. (9). Taking into consideration the totality of the circumstances, I am of the considered view that the order granting 50% backwages to the workman deserves to be suitably modified by reducing the backwages to 25% only. (10). Ordered accordingly. (11). For the reasons stated above, the writ petition is allowed in part; the impugned award is modified to the extent that the respondent-workman shall be entitled to reinstatement in service with continuity of service. The Management shall pay the arrears of 25% of backwages within a period of two months and subject to that the prosecution proceedings launched against it shall remain stayed. (12). Dasti . 14.10.2011 vishal shonkar (SURYA KANT) Judge 4 CWP No.3672 of 2011.doc - 5 – 5