1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 11981 of 1991 DATE OF DECISION: 3.6.2011 General Manager, Punjab Roadways, Muktsar & Anr. ..PETITIONERS VS. Harpreet Singh and another. ..RESPONDENTS with CWP No. 11982 of 1991 General Manager, Punjab Roadways, Muktsar & Anr. ..PETITIONERS VS. Ram Darshan and another. ..RESPONDENTS CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Simarjot Singh Dhillon, AAG Punjab for the petitioner. Mr. Rajiv Sharma, Legal Aid counsel for the respondents. *** JUDGMENT: Both the above-referred writ petitions are being disposed of by this common order. The petitioner-management, through the aforesaid writ petitions, has impugned the award dated 16.11.1990 and 18.9.1990 respectively by dint of which the termination of services of workmen (respondent No.1 in both the writ petitions) has been held to be illegal and a direction to re-instate them with continuity of service and full back wages, has been issued. 2 The workmen raised the industrial dispute on the ground that they joined the petitioner-management as a Helper but their services were terminated later without following any procedure of law and in an illegal manner. In reply, the Management though did not seriously disputed the employment of the workmen, but claimed that they were appointed purely on temporary basis for a specific period, after giving extensions, which came to an end with the efflux of time. After the contest the learned Tribunal came to the conclusion that the services of the workmen were terminated in gross violation of the rules and hence, as said above, set aside the order of their termination and ordered for their re-instatement into service with complete benefits. I have heard learned counsel for the parties and perused the record. The perusal of the impugned award reveals that documentary evidence was produced by the workmen to prove that they in fact had been worked for more than 240 days when their services were terminated. On the other hand, the department tried to conceal the aforesaid documents. Even it was shown that the workmen had been discharging their duties against a permanent post and the petitioner-management failed to show that the posts, on which the workmen were doing duties, were no more in existence. Their plea that the workmen had not completed 240 days belied from the documentary evidence produced by the workmen. Thus, in the light of evidence produced by the workmen, the learned Tribunal rightly came to the conclusion that there had been non-compliance of Section 25-F of the Act In The Haryana State Cooperative Supply and Marketing 3 Federation Vs. The State of Haryana and others 1995 (4) RSJ 369, the Division Bench of this Court held that giving of notional breaks with the object of preventing a workman from getting the benefit of labour legislation would amount to unfair labour practices and cannot take the benefit of clause (bb) of Section 2(oo) of the Act. The case in hand is one of retrenchment and, therefore, the provisions of Section 25-F of the Act would apply. Admittedly, there is non compliance of the mandatory provisions of Section 25-F of the Act. In the case of The Faridabad Central Co-op Bank Ltd. vs. The Presiding Officer, Labour Court (II), Faridabad and another 1999(3) RSJ 378, when it was established that the work on which the workman was appointed was not of temporary nature and his appointment was being extended from time to time and even when the workman was relieved of his duties, the work was available and the post was in existence, in such situation, it was held that provisions of Section 25- F of the Act cannot be excluded by merely saying that the appointment is made for “89 days on daily wages”. Further in the case of The Haryana State Cooperative Land Development Bank Ltd., Chandigarh v. The Presiding Officer, Labour Court Rohtak and another, 2001(3) RSJ 247 the workman, by virtue of various orders of appointment on 89 days basis had completed 240 days of service in the last calendar year immediately preceding the date of his termination. It has been observed that the termination of such employee by such order amounts to unfair labour practice. While exercising the extra ordinary jurisdiction under Article 226/227 of the Constitution of India, this Court would not sit as a Court of appeal over the findings of fact recorded by the Labour Court. Hence, the 4 findings returned by the learned Tribunal that there has been violation of Section 25-F of the Act are affirmed and the termination of the workmen was rightly set aside. It has been pointed out by learned counsel for the petitioners that the impugned award were stayed by this Court subject to compliance of Section 17-B of the Act and the workmen then were taken back into service. The question now left is with regard to the back wages, which as awarded by the learned Tribunal to the extent of 100% is on excessive side. So far as back wages are concerned, it is a discretionary power which has to be exercised keeping in view the facts and circumstances of each case and neither strait-jacket formula can be evolved nor a rule of universal application can be adopted. The Tribunal has awarded full back wages. The workmen were carrying out the task of help and keeping in view the nature of their duties, it cannot be believed that they remained idle during the period of their termination. Not only that, the workmen have not adequately discharged the burden of proving the fact that they were not gainfully employed interregnum. In Allahabad Jal Sansthan Vs. Daya Shankar Rai and another, 2005(5) SCC-124, it has been held by the Hon'ble Supreme Court that it is necessary to develop a pragmatic approach to problems dogging industrial relations. Ho0wever, no just solution can be offered, but a golden mean may be arrived at, and opined that interest of justice would be sub-served if the workman is awarded 50 per cent of back wages. Hence, this Court deem it appropriate to grant 50% back wages to the workmen instead of full back wages, from the date of demand notice till their re-instatement The instant petitions stand disposed of with the above 5 modification in the impugned awards. Photocopy of this order be placed in the connected petition. (ARVIND KUMAR) JUDGE June 03,2011 Jiten