IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 5156 of 2010 Judgment Reserved on: 28.10.2010 Date of decision: 18.11.2010 _________________________________________________________ Kirpa Ram. .....Petitioner. Versus The Secretary HP State Electricity Board &others. .....Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon'ble Mr. Justice V.K. Sharma, Judge. 1Whether approved for reporting? No. __________________________________________________________ For the petitioner: Mr. S.S. Sood, Advocate, vice counsel. For the respondents: Mr. Vinod Thakur, Advocate. V.K. Sharma, J. The learned counsel for the petitioner submitted at the very outset that this matter is covered under a judgment of this Court dated 18.06.2010 (Annexure P-5) in CWP No. 2881 of 2008, titled Ram Singh vs. State of Himachal Pradesh and others, which is extracted below in extenso: “Petitioner is seeking modification of award dated 17.12.2007 passed by the learned Presiding Judge, Himachal Pradesh Industrial Tribunal-cum-Labour Court, Shimla in reference No. 238/2001. 2. Material facts necessary for the adjudication of this petition are the petitioner was engaged in the year 1981, His services were retrenched without following the provisions of 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). He raised demand. State Government made reference to the Labour Court. Petitioner filed claim petition alongwith Kirpa Ram and Mast Ram. It was averred in the claim petition that he had completed 240 days preceding his retrenchment and there was violation of section 25-G at the time of terminating his services. Case of the employer was that the petitioner had not completed 240 days and the person juniors to him were not retained nor fresh hands were engaged. 3. We have gone through the award passed by the Labour Court carefully. The Labour Court has recorded a finding that the petitioner Ram Singh had completed 240 days preceding his retrenchment. The Labour Court ordered the petitioner to be reinstated, however, without seniority and back wages. We are of the considered view that as far as payment of back wages is concerned, it is not automatic. 4. Their Lordships of the Hon’ble Supreme Court in P.V.K. Distillery Limited versus Mahendra Ram, (2009) 5 SCC 705 have held that even though the termination may be unjustifiable and illegal, it itself does not create a right of reinstatement with full employment benefits and full back wages. Their Lordships have held as under: “18. 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 realizing 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. ...3... 20. In deciding the question, as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic albeit the ordinary rule of full back wages on reinstatement. [Western India Match Co. Ltd. v. Third Industrial Tribunal, West Bengal, 1978 Lab IC 179 (SC).] 27. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.” 5. We do not find any infirmity in denying the back wages to the petitioner. However, we are of the considered view that the petitioner ought to have been granted seniority once his termination has been found to be void ab initio. 6. Accordingly, the petition is partly allowed. Award dated 17.12.2007 is modified to the extent that the petitioner is held entitled to seniority also. There shall, however, be no order as to costs.” 2. The record reveals that award dated 17.12.2007 (Annexure P-4) passed by the learned Presiding Judge, H.P. Industrial Tribunal-cum-Labour Court, Shimla, in Reference No. 238 of 2001, titled Ram Singh and others vs. The Secretary, H.P. State Electricity Board and others, was under challenge in the above CWP No. 2881 of 2008, decided by this Court vide judgment dated 18.6.2010 (Annexure P-5) extracted hereinabove, under which the present matter is said to be covered, at the instance of one Ram Singh, who was petitioner No. 1 in the reference before the Industrial Tribunal-cum-Labour Court, alongwith Kirpa Ram, the petitioner herein and one other, namely, Mast Ram, being ...4... petitioners No. 2 and 3, respectively. Operative part of the award dated 17.12.2007 (Annexure P-4) is extracted below: “In view of my findings on the aforesaid issues, the present reference is partly allowed and the petitioners are ordered to be reinstated without seniority and back-wages.” 3. Thus, it is manifest that the petitioner is a similarly situate person and his case is fully covered under the aforesaid judgment dated 18.06.2010 (Annexure P-5), rendered by this Court in CWP No. 2881 of 2008, titled Ram Singh vs. State of Himachal Pradesh and others. 4. In view of the above, the petition is partly allowed. Consequently, the award dated 17.12.2007 (Annexure P-4) is modified to the extent that the petitioner is held entitled to seniority as well in addition to the relief of reinstatement granted in his favour by the Industrial Tribunal-cum-Labour Court under the impugned award dated 17.12.2007 (Annexure P-4). (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge November 18, 2010 (virender)