1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 3149 of 1992 DATE OF DECISION: 31.5.2011 Punjab State Cooperative Milk Producers Federation. ..PETITIONER VS. The Presiding Officer, UT Chandigarh and another. ..RESPONDENTS with CWP No. 5479 of 1992 Joban Kumar ..PETITIONER VS. The Presiding Officer, UT Chandigarh and another ..RESPONDENTS CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Salil Sabhlok, Advocate for the petitioner Punjab State Coop. Milk Producers Federation. Mr. J.S. Sathi, Advocate-Legal Aid Counsel for Joban Kumar. *** JUDGMENT: The aforesaid writ petitions are filed against one and the same award dated 12.12.1991, hence the same are being disposed of by this common order. The facts of the case are that workman Joban Kumar raised an industrial dispute with the averments that he served the Punjab State Cooperative Milk Producers Federation (hereinafter referred to as Federation) as Milk Bar Manager from 7.8.1987 to 4.5.1988, with breaks, 2 and thereby completed 240 days. However, on 5.5.1988 his services were terminated without assigning any reason or following the procedure of law. The Federation contested the case and filed the reply admitting the engagement of the workman on the post for the aforesaid period, with breaks. But according to them his appointment was purely on adhoc basis, which came to an end automatically on the expiry of terms. The parties led their respective evidence in order to prove the issues struck upon the pleadings. The Labour Court, vide the impugned award dated 12.12.1991 held that there had been non-compliance of Section 25-F of the Industrial Disputes Act (for short, the Act), which renders the termination of the workman illegal and accordingly, set aside the same and ordered his re-instatement with continuity of service and 50% back wages. CWP No.3149 of 1992 filed by the Federation is impugning the award in toto while CWP No.5479 of 1992 is filed by the workman seeking enhancement in the back wages. I have heard learned counsel for the parties and perused the record. It is not in dispute that the workman was given appointment as Milk Bar Manager on 7.8.1987 and was given extensions firstly from 6.11.1987 and then from 29.1.1988 to 4.5.1988 . The evidence on record duly proves that the workman had completed 240 days of service in twelve calendar months preceding the date of his termination. It has not been shown that the work was not available with the Federation and so the services of workman were terminated. Although, a letter has been produced on record for the proposed closure of Milk Bar, but there is nothing on record to show that the same relates to the Milk Bar where workman was 3 serving. Hence, from the above facts, it is evident that the work still existed with the petitioners but there is no legal reason shown as to why the workman could not be continued thereafter. In The Haryana State Cooperative Supply and Marketing 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. 4 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 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 workman was rightly set aside. 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 50% of the back wages. The same seems to be a reasoned one. It cannot be believed that he remained idle during this period. Not only that, the workman has not adequately discharged the burden of proving the fact that he was 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. However, 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, No fault could be found in the approach adopted by the learned Tribunal while awarding 50% of the back wages. In the light of above discussion, both the petitions are dismissed, leaving the parties to bear their own costs. Copy of this order be placed in connected petition. (ARVIND KUMAR) JUDGE May 31,2011 Jiten