IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17062 of 2000 Date of decision:05.09.2009 Kamlesh Kumari ...Petitioner versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Naveen Daryal, Advocate, for the petitioner. Mr. D.S.Nalwa, Additional Advocate General, Haryana. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The award under challenge is the restriction by the Labour Court of the workman's entitlement to 50% of back wages only. It was a case where the workman was complaining of illegal termination. He had died during enquiry before the Labour Court and the findings that were brought by the workman's legal representatives therefore stood confined only to the issue of back wages. The Courts have noticed a paradigm shift in the matter of what was required to be proved before the Labour Curt to entitle a person to claim back wages and it is now expected of the workman to contend and prove that he had not been gainfully employed. The evidence of such gainful employment would have been possible if the workman was alive and that he had been in another employment. Here in this case, the workman had died and therefore, the question of Civil Writ Petition No.17062 of 2000 -2- proof of gainful employment did not arise. The death itself makes the continuance of employment impossible. 2. The learned counsel appearing for the State stoutly opposes the plea made on behalf of the petitioner on the ground that there is no specific prayer in the writ petition seeking for quashing of the award which contains merely a prayer for a mandamus. He also contends that nowhere in the writ petition, it is contended that the workman had not been gainfully employed. I have already pointed out the question of gainful employment would arise if he had been alive and if he had been working elsewhere. Even an inadequacy in the nature of relief asked shall be seen in the context of how it is generally worded and what intend is. The writ petition seeks for issuance of a writ in the nature of mandamus for directing the respondent to grant full back wages instead of 50% only. It should be understood that the workman was assailing the award of the Labour Court when he was asking for full back wages. The Court that passed an award for 50% of back wages, in my view, ought to have granted 100% from the date of termination till he died. Consequently, the petitioners, who are legal representatives of the deceased workman, shall be entitled to remaining 50% of back wages also. 3. The writ petition is allowed in the above terms. No costs. (K.KANNAN) JUDGE 05.09.2009 sanjeev