Civil Writ Petition No.6215 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Civil Writ Petition No.6215 of 1987 Date of Decision:09.09.2008 Ram Bhajan .....Petitioner Vs. Presiding Officer, Labour Court, Union Territory, Chandigarh and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. J.C. Verma, Senior Advocate with Ms. Meenakshi Verma, Advocate for the petitioner. Mr. Tarunveer Vashisth, Addl. AG, Haryana for respondent No.2. **** HARBANS LAL, J. This petition has been moved by Ram Bhajan (hereinafter to be referred as `the workman') under Articles 226/227 of the Constitution of India for modifying the impugned award dated 20.10.1986 (Annexure P.3) passed by the Presiding Officer of the Labour Court, U.T. Chandigarh to the extent that the petitioner is entitled to full back-wages and other benefits in the event of the order of termination having been set aside. The brief facts giving rise to this petition are that on 24.8.1982, the petitioner was a conductor on Bus No.2857, which was checked by Niranjan Singh, Inspector along with Ram Kishan, Inspector at Karnal bye- pass. On checking, they found that eight passengers were travelling from Nilokheri to Karnal. The petitioner had issued old tickets to them. Niranjan Singh, Inspector took eight unpunched tickets from the conductor as proof. By issuing old tickets, the conductor- petitioner defrauded the government worth Rs.12/- when aforementioned Inspectors confirmed from booking Civil Writ Petition No.6215 of 1987 -2- branch and checked the record, it came to light that the petitioner had already sold these tickets on 10.7.1982 and 22.8.1982. The petitioner was charge-sheeted. He filed reply to the charge-sheet. Mr. Darshan Gupta, who was working as Welfare Officer with the respondent- Management conducted the inquiry and submitted his report. On the basis of the same, show cause notice was issued to the petitioner and finally, he was removed from service on 8.3.1983. The petitioner challenged his termination order and served demand notice on the Management on 26.7.1984. The dispute could not be resolved even before the Conciliation Officer. Ultimately, the same was referred to the Presiding Officer, Labour Court, Union Territory, Chandigarh. The following issue was framed by the Presiding Officer of the Labour Court:- “Whether the inquiry is vitiated on any ground whatsoever?” After hearing the representatives of the parties, the learned Presiding Officer of the Labour Court passed the impugned award setting aside the termination order and ordered to reinstate the workman with continuity of service with the observations that as the inquiry proceedings have been held to be illegal on a technical point, he will not be entitled to the relief of back-wages. Feeling aggrieved with the denial of back-wages, the petitioner has preferred this petition. In the written statement filed by the General Manager, Haryana Roadways, Chandigarh- respondent, it is averred that full opportunity was given to the petitioner to produce evidence in self defence, but he showed his inability to do so. From the perusal of enquiry file, it is clear that the petitioner has cross-examined the official witnesses during the enquiry proceedings and his signatures were obtained on all the pages by the Civil Writ Petition No.6215 of 1987 -3- Enquiry Officer. The enquiry was conducted by the Enquiry Officer in a proper and legal manner. The petitioner had been informed by the Enquiry Officer about the date and place of the inquiry well in time. The learned Presiding Officer, Labour Court has set aside the termination order on the sole ground that the Welfare Officer of the Roadways could not be appointed as an Enquiry Officer and it was a technical fault on the part of the Management. The petitioner never applied for the assistance of any co- worker, rather he himself cross-examined the official witnesses. Lastly, it has been prayed that this petition may be dismissed with costs. I have heard the learned counsel for the parties, besides perusing the findings returned by the Presiding Officer, Labour Court with due care. Mr. J.C. Verma, Advocate appearing on behalf of the petitioner strenuously urged that the termination order having been set aside, the workman is entitled to get full back-wages in view of the observations rendered by the Full Bench of this Court in re: Hari Palace, Ambala City v. The Presiding Officer, Labour Court and another, 1979 Punjab Law Reporter 720. He further pressed into service that in re: Sukhdev Singh v. General Manager, Punjab Roadways, TarnTaran, (2004) 2 Recent Services Judgments 184, this Court has held that ordinarily a workman whose service has been illegally terminated would be entitled to full back- wages except to the extent he was gainfully employed during the forced idleness. This is the normal rule and the party objecting to it must establish the circumstances necessitating departure. He further relied upon Angrez Singh v. State of Punjab, 2003 (3) Recent Services Judgments 402 wherein the Labour Court denied back-wages to the workman on the ground that the Management had failed to prove the misconduct, only for technical reasons. Civil Writ Petition No.6215 of 1987 -4- It was held by this Court that the denial of back-wages would be putting premium on the arbitrary decision of the Management. The workman was directed to be reinstated into service with full back-wages. To controvert these submissions, Mr. Tarunveer Vashisth, learned Additional Advocate General, appearing on behalf of the General Manager, Haryana Roadways, Chandigarh- respondent urged with a good deal of force that a close examination of the award would reveal that the petitioner had participated in the enquiry proceedings, cross-examined the witnesses himself and closed his defence evidence by suffering a statement that he does not want to lead any defence evidence. He further puts that of course, the order regarding termination of services of the petitioner was set aside on a technical ground, but by now the law has undergone change and it has been affirmed from time to time by the Apex Court that in akin circumstances, the workman should not be reinstated much less to allow him the back-wages. He has relied upon the observations made in re: Rajender Singh R. v. Depot Manager, Andhra Pradesh State Road Transport Corporation, 2000(3) Service Cases Today 1 as well as Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, 2006 (5) Service Law Reporter 721. On giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that the petitioner is disentitled to get back-wages for the reasons to be recorded hereinafter. The observations rendered in re: Hari Palace, Ambala City (supra), indeed are based upon M/s Hindustan Tin Works Private Limited v. The Employees of M/s Hindustan Tin Works Private Limited, AIR 1979 SC 75 wherein it has been held that “full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating Civil Writ Petition No.6215 of 1987 -5- departure. But now the law has undergone metamorphosis. In re: UP State Brassware Corporation Limited and another v. Uday Narain Pandey, (2006) 1 Supreme Court Cases 479, the Apex Court while referring to M/s Hindustan Tin Works Private (supra) held as under:- “A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/ or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct Civil Writ Petition No.6215 of 1987 -6- to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence. Although earlier the Supreme Court insisted that it was for the employer to raise the plea that the workman was not gainfully employed during the period for which back wages are claimed but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman. The respondent workman did not plead that he after his purported retrenchment was wholly unemployed. The respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. As the question as regards termination of service of the respondent by the appellant is not in issue, it will be assumed that the services of the respondent were terminated in violation of Section 6-N of the U.P. Industrial Disputes Act. Furthermore the establishment of the appellant wherein the respondent could be directed to be reinstated had been sold on 26-3-1993. In that view of the matter, Section 6-O of the U.P. Industrial Disputes Act would apply in terms whereof compensation will be payable in the same manner as if he was Civil Writ Petition No.6215 of 1987 -7- retrenched under Section 6-N thereof.” (emphasis supplied) An identical view has been taken by the Apex Court in re: Haryana State Electronics Development Corporation Limited v. Mamni, (2006) 9 Supreme Court Cases 434 as well as in Chandu Lal v. The Management of M/s Pan American World Airways Inc., AIR 1985 SC 1128. A careful study of these rulings bring to fore the departure from the ratio laid down in M/s Hindustan Tin Works Private Limited (supra). In view of the afore-quoted law, the workman is not automatically entitled to get back-wages. In re: Rajinder Singh R. (supra), Hon'ble the Supreme Court has also held that the appellant would thus be entitled to continuity of service but would not be entitled to back- wages. The observations made in case of Angrez Singh (supra) and Sukhdev Singh (supra) are based on Hari Palace, Ambala City (supra). In re: State of M.P. and others v. Arjun Lal Rajak, (2006) 2 Supreme Court Cases 711, it has been held by the Apex Court that the onus to prove that workman had not been gainfully employed during the period of termination of his services and his reinstatement lies upon him. Here in this case, the workman has not disclosed as to whether or not he remained wholly unemployed or gainfully employed during the period in question though in view of the afore-extracted observations, the onus lay upon him. At this juncture, Mr. Verma pointed out that the petitioner- workman has retired from service. Admittedly, the enquiry report has been set aside on a technical ground. As observed in paragraph No.11 of the impugned award, “at Page 53 of the enquiry file, there is one letter written by Ram Bhajan to the General Manager. In this letter, he had written that whatever mistake he has committed, he will not commit in future. He is a poor man and he Civil Writ Petition No.6215 of 1987 -8- cannot make both ends meet with half pay. He may be reinstated. So, on his request, he was reinstated”. The learned Presiding Officer of the Labour Court has observed that admittedly in this letter workman had not conceded his guilt in unequivocal terms. However, he has conceded his guilt impliedly. He held that the appointment of welfare officer as enquiry officer is patently against the statute and the same is held to be illegal. In re: H. Amaresh (supra), the bus conductor was charge-sheeted for misconduct and he was dismissed from service after enquiry. The Apex Court held that even short remittance of money amounted to misconduct. Reinstatement could not have been awarded. Respondent had no legal right to continue in service. Adverting to the facts of the present case, there is no gain- saying the fact that the petitioner has been reinstated, he has retired from service. The respondent- General Manager, Haryana Roadways has not posed a challenge to the reinstatement of the petitioner. On the overall view of the matter, I do not consider it proper to interfere with the impugned award in exercise of writ jurisdiction under Articles 226/227 of the Constitution of India. As a sequel of the above discussion, this petition is dismissed. September 09, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No