IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 886 of 2002 (Old CMWP No. 28656 of 1997) Senior Superintendent of Post Offices, Dehradun Division, Dehradun. … Petitioner. Versus 1. Presiding Officer, Central Govt. Industrial Tribunal-cum- Labour Court, Kanpur-208001. 2. Yashpal Singh Pawar S/O Sri Inder Singh Pawar, R/O Pratit Nagar, Raywala, Dehradun-248001. … Respondents. Mr. Vikas Pande, Standing Counsel (Central Govt.), learned counsel for the petitioner. Mr.B.M.Pingal, Advocate, learned counsel for the respondent No. 2. Date March 5, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned award dated 4-3-1996 passed by the respondent no. l, which was communicated vide letter dated 15-7-1996 (Annexure-1 to the writ petition), whereby the learned Central Government Industrial Tribunal-cum-Labour Court, Pandu Nagar, Kanpur (for short the Tribunal) has reinstated the workman-respondent no.2 in service with full back wages. Relevant facts, giving rise to the present writ petition, in brief are, that the workman Yashpal Singh Pawar has raised an industrial dispute claiming that he was engaged as a part time watchman in the post office from July 1983 and he worked there continuously upto 14-11-1986 when his services were terminated and a new incumbent Harpal Singh was engaged in violation of the provisions of Section 25F and 25G of the Industrial Disputes Act 1947 (Act No. 14 of 1947) (for short the Act). 2 The Central Government, Ministry of Labour, New Delhi by Notification dated 31-1-1990 referred the industrial dispute for adjudication to the learned Tribunal, which was registered as Industrial Dispute No. 60 of 1990. The opposite party-petitioner filed reply alleging therein that the workman concerned was not engaged from July 1983 and he had not worked on any sanctioned post rather he was engaged according to need. Since he was a temporary worker, there was no need for compliance of any provisions of Act. In support of his claim, the workman filed his own affidavit before the learned Tribunal. He also filed documents including a certificate (Annexure No.1) along with the affidavit to prove that he had worked from July 1983 to 14-11-1986. The workman also filed annexure II, which is a certificate to show that he was relieved on 14-11-1986. The workman also filed Annexure III which is reply of the petitioner department showing their inability to engage the workman. On the other hand, the petitioner department filed affidavit of Mr. Nand Kishore, Deputy Superintendent and also filed 23 documents. It appears that the witness (Nand Kishore) had not appeared in the witness box for his cross-examination by the workman despite opportunity. On 3-1-1986, the evidence of the petitioner/management was closed. After hearing both the parties and on perusal of the evidence led by them, the learned Tribunal has held that the workman was engaged as part time watchman. It was also held that the workman falls within the meaning of workman under Section 2(s) of the Act. It was also held that the workman had worked for more than 240 days in a calendar year and that there was violation of Section 25F of the Act. Ultimately, by order dated 4-3-1996, the impugned order directing reinstatement of the workman with full 3 back wages was passed by the learned Tribunal, which gave rise to the present writ petition. On behalf of the respondent no. 2-workman counter affidavit has been filed. The petitioner has filed rejoinder affidavit. I have perused the material placed before this Court including the memo of writ petition, the counter affidavit and rejoinder affidavit along with their annexures. Learned counsel for the petitioner has vehemently argued that the finding of the learned Tribunal holding the postal departmental as an industry is perverse. Learned counsel has submitted that the function of the petitioner department is a sovereign function and not an industry as has been held in the case of Sub-Divisional Inspector of Post, Vaikam and others Vs. Theyyam Joseph and others [1996, 8, Supreme Court Cases, Page 489]. In reply, the learned counsel for the respondent no.1 has submitted that by a subsequent judgment rendered by three Hon’ble Judges of the Apex Court in the case of General Manager, Telecom vs. S.Srinivasan Rao and others, [1998 (78), FLR, 143 (Supreme Court) the Apex Court has held that the decisions in Theyyam Joseph (supra) case cannot be treated as laying down the correct law. It was also held that the Telecommunication Department of the Union of India is an ‘industry’. The contention of the learned counsel for the petitioner is not tenable in view of the aforesaid judgment of the Apex Court in the case of General Manager, Telecom vs. S. Srinivasan Rao and others (supra). 4 A perusal of the impugned award, it is obvious that the learned Tribunal after perusing the evidence led before it has passed the award. The learned Tribunal has rightly held that the respondent no.2-employee, who was engaged as part time watchman falls within the category of workman as envisaged by Section 2(s) of the Act. The learned Tribunal after appraisal of evidence has held that the workman was entitled to the benefit of Section 25F of the Act. On these counts, the impugned award does not call for any interference by this Court in exercise of writ jurisdiction. The impugned award does not suffer from perversity or manifest error of law so far as the finding as to applicability of the provisions of the Act and breach of Section 25 F of the Act in the instant case is concerned. So far as the award of full back wages to the respondent no. 2 is concerned, learned counsel for the petitioner has vehemently argued that the award of full back wages in favour of the workman is arbitrary and that there was no evidence before the learned Tribunal that the workman remained out of employment during the period his services were terminated by the employer. Learned counsel therefore submitted that the writ petition is liable to be allowed on this ground alone. The petitioner has annexed Annexure No. 2, which is the affidavit of the workman filed before the learned Tribunal on 13-9-1991. In this affidavit, no such averment has been made by the workman that he remained out of employment after his services were terminated by the petitioner department on 14-11-1986 till the date of impugned order. Having heard the submissions of learned counsel for both the parties and having perused the impugned award passed by the learned Tribunal, I am of the view that the learned Tribunal has not recorded any reasons for awarding full back wages to the workman. In my view the ends of justice would be served if the 5 workman is awarded 50% back wages instead of full back wages. To this extent, the impugned award is liable to be modified and the writ petition deserves to be partly allowed. The writ petition is partly allowed. The impugned award is modified only to the extent that the respondent no. 1 shall be entitled to 50% back wages, instead of full back wages as directed by the learned Tribunal. The interim order dated 1-9-1997 is vacated. (B.S.Verma, J.) RCP