C.W.P. No. 1180 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 1180 of 1992 DATE OF DECISION: 20.4.2011 Punjab State Tubewell Corporation Limited & Anr. ..PETITIONERS VS. Narayan Bahadur and another. ..RESPONDENTS CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Vijay Pal, Advocate for the petitioner. Mr. Karan Bhardwaj, Advocate for the respondent No.1. *** JUDGMENT: The petitioners have invoked the extra ordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking issuance of writ in the nature of certiorari, quashing the award dated 19.7.1991 (Annexure P-4) vide which the claim of respondent No.1 has been accepted and the petitioners have been directed to re-instate the workman with continuity of service and full back wages from the date of demand notice i.e. 26.2.1988 till re-instatement. The workman has further been asked to report for duty as soon as the award becomes enforceable at law. The brief facts of the case are that workman-respondent No.1 raised an industrial dispute with the averments that he was appointed as Chowkidar on 22.5.1986 on ad-hoc basis and was given re-appointment from time to time with notional breaks and worked as such upto 19.10.1987, C.W.P. No. 1180 of 1992 2 but the Department terminated his services, without complying with provisions of law since neither any charge-sheet was issued nor any show cause notice or any retrenchment compensation was paid to him. He further averred that the juniors to him are still in service. Reference was made and the claim of the workman was contested by the management (petitioners herein). They admitted that the workman was appointed as Chowkidar on 22.5.1986 on ad-hoc basis and was given extension from time to time. It was also admitted that the workman was served with notice of termination on 15.7.1987 which was subsequently withdrawn and he was retained in service. However, they claimed that the petitioner was given re-appointment w.e.f. 21.8.1987 to 17.11.1987, on expiry of his extension period on 19.8.1987 and on expiry of extension period i.e. on 17.11.1987, he was relived of his duties since his appointment was in contravention of instructions issued by Punjab Government. The parties led their respective evidence in order to prove the issues struck upon the pleadings. The Labour Court, vide the impugned award dated 19.7.1991 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, in the manner indicated above. Dis-satisfied with the same, the Department has come up in this writ petition. I have heard learned counsel for the parties and perused the record. It is not in dispute that the workman was given appointment as Chowkidar on 22.5.1986 and was given extension from time to time for 89 C.W.P. No. 1180 of 1992 3 days on each occasion. It is also not in dispute that earlier on 15.7.1987 he was given one month's notice for termination of his service, but later it was withdrawn and he was given re-appointment w.e.f. 21.8.1987 to 17.11.1987, the date on which he worked last. Although, it has been pleaded by the petitioners that the workman did not work from 20.8.1987 to 18.10.1987, but no evidence, worth of any credence, was brought by them, rather the arrival report of the workman was accepted on 19.10.1987. However, 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 petitioners and so the services of workman were terminated. Rather during the hearing of the instant writ petition, a proposal was made by the learned counsel for the petitioners to accommodate the workman as a fresh appointee as a Chowkidaar or on an equivalent post, which they have at any station, but subject to the condition that the workman will not claim any back-wages or continuity of service and shall have no claim on previous service. 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 C.W.P. No. 1180 of 1992 4 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 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 right 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 full back C.W.P. No. 1180 of 1992 5 wages from the date of demand notice i.e. 26.2.1988 till re-instatement. The same seems to be on excessive side. The workman was appointed as Chowkidar and keeping in view the nature of duties performed by him, 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, this Court deem it appropriate to grant 50% back wages to the workman instead of full back wages, from the date of demand notice till his re-instatement The instant petition stands disposed of with the above modification in the impugned award. (ARVIND KUMAR) JUDGE April 20,2011 Jiten