C.W.P. No. 12701 of 1989 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.W.P. No. 12701 of 1989 Date of Decision : 10.12.2010 The Punjab State Civil Supplies Corporation & another .......... Petitioners Versus Presiding Officer, Labour Court, Bhatinda & others ...... Respondents CORAM : HON'BLE MS. JUSTICE RITU BAHRI 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present : Mr. Arun Nehra, Advocate for the petitioners. Mr. Gulshan Sharma, Advocate for respondents No. 2 & 3. **** RITU BAHRI, J. This petition has been filed under Articles 226/227 of the Constitution of India for challenging the order dated 2.3.1989 (Annexure P-4) whereby the workmen Jagtar Singh and Joginder Singh have been reinstated with full back wages from the date of demand notice till the date of award. Mr. Arun Nehra, learned counsel appearing on behalf of the petitioners has informed the Court that in compliance of the award of the learned Labour Court respondents Jagtar Singh and Joginder Singh were reinstated. He has argued that the award of the learned Labour Court be modified to the extent it has granted back C.W.P. No. 12701 of 1989 -2- wages w.e.f. the demand notice dated 19.8.1987 and 10.9.1987, till the date of award i.e. 14.3.1989. Learned counsel for the petitioners has placed reliance on the judgments of the Hon'ble Supreme Court in the cases M.D. Balasahed Desai Sahakari S.K. Ltd. Vs. Kashinath Ganapati Kambale 2009(2) 508 and State of Maharashtra & Ors. Vs. Reshma Ramesh Meher & Anr. 2009(1) 359 to contend that in these judgments the Hon'ble Supreme Court has laid down emphasis on the principles contained in Section 106 of the Indian Evidence Act, the burden to prove that the workman was not gainfully employed is not on the employer. Initially the burden is on the workman to prove that he was not gainfully employed. Thereafter the employer can bring on record materials to rebut the claim. Mr. Arun Nehra, learned counsel appearing on behalf of the petitioners has further argued that the Hon'ble Supreme Court in the case of State of Maharashtra & Ors. Vs. Reshma Ramesh Meher & Anr. (supra) has laid down principles and factors which are required to be taken into consideration before passing of order of award of back-wages. Paragraph 18 of the judgment , for reference, is reproduced below :- “ 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 reinstatement does not necessarily result in payment of full or partial back-wages, which is independent of reinstatement. While dealing with the prayer C.W.P. No. 12701 of 1989 -3- of back-wages, factual scenario, equity and good conscious, a number of other factors, like the manner of selection; nature of appointment; the period for which the employee has worked with the employer etc., have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract 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 the each case. Mr. Arun Nehra, argued that in the present case no evidence was led by the respondents before the learned Labour Court that they were not gainfully employed. The award of the learned Labour Court to the extent of back-wages is liable to be modified. Mr. Gulshan Sharma, learned counsel appearing on behalf of respondents No. 2 & 3 has argued that the petitioners were terminated on 29.6.1987 & 29.5.1987 respectively, the demand notice has been filed on 19.8.1987. There is no delay by the workmen in raising their claim for reinstatement. In the claim statement it has been specifically mentioned in paragraph 4 that they were unemployed. Joginder Singh while appearing in the witness box deposed that he was not gainfully employed. In the claim statement specific plea has been raised that they were not gainfully employed. The management did not produce full record in the learned Labour Court. No evidence was led that they were gainfully employed. The demand notice was served within C.W.P. No. 12701 of 1989 -4- a period of one month of termination of the services. As per evidence led there was non-compliance of Section 25-F of the Industrial Disputes Act. In view of the above, the writ petition is dismissed, with no order as to costs. 10.12.2010 (RITU BAHRI) 'sp' JUDGE