IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.133 of 2009(O&M) Date of decision: 14.12.2009 Kesar Chand. -----Appellant Vs. Management of M/s Escorts Limited & another. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Sanjay Majithia, Sr. Advocate with Mr. Shailendra Sharma, Advocate for the appellant. --- ORDER: 1. This appeal has been preferred against judgment of learned Single Judge, partly allowing the writ petition of the management by restricting award of backwages to 20% instead of full backwages as directed by the Labour Court. 2. The appellant workman was employed as Inspector and after he had worked for about five years, his services were terminated on the ground of absence from duty w.e.f. 1.4.1980, by relying upon Clause 37 of the standing orders applicable to the establishment of the management. The workman raised an industrial dispute, alleging violation of principles of natural justice and also violation of Section 25-F of the Industrial Disputes Act, LPA No.133 of 2009 1947. His case was that his absence was on medical ground for which he had applied for leave. 3. The Labour Court upheld the plea of the workman and directed reinstatement with backwages vide award dated 14.10.1982. 4. Learned Single Judge upheld the finding of the Labour Court that the workman should have been given opportunity of explaining his position for absence and in absence thereof, reinstatement was justified. However, having regard to all the circumstances, the order of backwages was set aside and limited to 20% except for the period he remained gainfully employed. 5. We have heard learned counsel for the appellant. 6. Learned counsel for the appellant submits that limiting the backwages to 20% was not justified. He relies upon judgments of the Hon’ble Supreme Court in Shri D.K. Yadav v. M/s J.M.A. Industries Ltd. 1993(3) SCC 259, wherein similar clause, permitting termination without inquiry on the ground of absence from duty, was held to be violative of Article 14 of the Constitution and M/s P.V.K. Distillery Ltd. v. Mahendra Ram 2009(5) SCC 705, wherein backwages were awarded to the extent of 50% having regard to the fact that the factory remained closed for some time. 7. We do not find any merit in the contentions raised. The workman had served for about five years and remained out 2 LPA No.133 of 2009 of service for more than 26 years during pendency of the writ petition in this Court. Contention that once termination is found to be bad, in absence of mitigating circumstances, backwages must follow, cannot be accepted in view of law laid down by the Hon’ble Supreme in J.K. Synthetics v. K.P. Agrawal and another (2007) 2 SCC 433. It is not longer the law that once termination is found to be illegal, backwages must follow. Burden is on the workman to show that he was not gainfully employed. There is no finding to the effect that the workman was not gainfully employed. In any case, it will be unfair to burden the management with backwages of 26 years for which the workman did not render any service. Judgment in M/s P.V.K. Distillery Ltd. (supra) does not lay down that full backwages must be awarded in every case where termination is held to be illegal. Award of backwages to the extent of 50% in that case is on facts, without laying down any principle of law. 8. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. 9. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE December 14, 2009 ( GURDEV SINGH ) ashwani JUDGE 3