IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16318 of 2000 Date of decision: 17.09.2009 Ashok Kumar ...Petitioner versus Presiding Officer, Labour Court, Gurgaon and another. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Sourab Kalia, Advocate for Mr. B.S.Rana, Advocate, for the petitioner. Mr.Jai Singh Yadav, Advocate, for Mr. Sachin Mittal, Advocate, for the respondent. ---- 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 ? ---- K.Kannan, J.(Oral) 1. The workman complains of unlawful termination of his services while the management contended that they had never terminated his services and that he had willfully absented himself from service from 08.09.1994. The plea of the management that they had not terminated the services of the workman, was not made for the first time before the Labour Court, but it was so stated even before the Conciliation Officer. The workman dragged his feet and wanted the whole of the back wages and that stand-off led to a reference to the Labour Court. 2. The Labour Court on evidence adduced by the respective parties found, the management had never denied the employment of the workman and that it was merely a case of the workman of not coming Civil Writ Petition No.16318 of 2000 - 2 - for duty. The workman was also asking for back wages for the time he had not reported for duty. The Labour Court found that the management had not terminated the services of the petitioner-workman and, therefore, directed that the petitioner was at liberty to report for duty, but disallowed the back wages. In so doing, the Labour Court referred to the evidence of the petitioner where he had stated that he was to incur monthly expenses for his family an amount of Rs.2,000/- and he was earning this by doing labour work and by pulling rickshaw. 3. The learned counsel for the petitioner/workman would contend that the mere fact that the workman had applied himself to manual labour for his day-to-day living, ought not to be understood as gainful employment. I agree with his contention and find that the Labour Court was not justified in denying to him completely the back wages. The learned counsel for the workman also contends that the workman had reported for duty on 06.09.1994 and 07.09.1994 also, but the management had marked him absent and was falsely contending that the workman had absented himself from 08.09.1994. Whatever was the conduct of the management that prevented the workman from reporting for duty on 08.09.1994, one thing became clear i.e., the time when the conciliation was in progress, there was a definite commitment by the management to take him back in service and it was the workman, by his conduct who denied himself of such a dispensation by insisting that he should be paid all his back wages. I find that there is culpability in equal measure for the workman being unable to resume duty. I am of the view that the matter would not have pulled along, if the workman had adopted Civil Writ Petition No.16318 of 2000 - 3 - a modicum of pragmatism and accepted the course of resumption of duty, when it was offered before the Conciliation Officer. To deny him the wages wholly however would still be a far-cry for justice, where the management had as per the showing of the workman, deliberately marked him absent and forced the issue at least temporarily till the time when the matter went before the Conciliation Officer. To balance the scales of justice, I would think that the workman shall be entitled to the relief of reinstatement and be granted 25% back wages from 08.09.1994 till his reinstatement from service. The award of the Labour Court is consequently modified and there shall be a direction for reinstatement with 25% back wages as stated above. 3. The writ petition is allowed in the above terms. (K.KANNAN) JUDGE 17.09.2009 sanjeev