CWP No. 4202 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4202 of 2009 Date of decision: 23.02.2010 Haryana State Agricultural Marketing Board ...... PETITIONER VERSUS Rajbir son of Sh. Phaggu Ram and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Sandeep Kotla, Advocate, for the petitioner. Mr. Sherry K. Singla, Advocate, for respondent No. 1. *** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present writ petition is for setting aside the Award dated 28.11.2008 (Annexure P-16), vide which the reference has been answered in favour of respondent No. 1-workman by directing reinstatement of the workman with continuity of service and full back wages. Counsel for the petitioner contends that the Award passed by the Labour Court cannot be sustained for the reason that respondent No. 1-workman was appointed as a Driver with the petitioner through a contractor and his appointment was purely contractual in nature, which CWP No. 4202 of 2009 2 came to an end with the expiry of the period for which he was put in service. He, therefore, contends that the provisions of Section 25-F of the Industrial Disputes Act (for short 'the Act') would not be applicable and it would fall under the exception 2 (oo) (bb) of the Act. He, on this basis, contends that the Award passed by the Labour Court cannot be sustained and deserves to be set aside. He further contends that in any case, the workman shall not be entitled to full back wages as he is a Driver and would have worked somewhere to sustain himself and could not have been left idle all through. He, on this basis, prays for modification of the Award to the extent of back wages. On the other hand, counsel for respondent No.1-workman submits that the petitioner-Management had put forth a specific assertion with regard to the appointment of the petitioner being through a contractor but neither the name of the contractor has been disclosed nor any document has been placed on record suggesting appointment of the contractor who had further engaged the workman as a Driver. He, on this basis, submits that the Award passed by the Labour Court does not call for any interference by this Court as on consideration of the evidence brought on record by the parties concerned, the Labour Court has proceeded to give a finding, which is in accordance with law. He further points out that even the Management witness MW-1 i.e. Surinder Kumar, SDO, has, in his cross-examination, admitted that the workman was not appointed through a contractor. He, on this basis, prays that the writ petition deserves to be dismissed. As regards the back wages, he contends that the workman had not been engaged in alternative employment and he has, as a matter of fact, preferred an application under Section 17-B of the Act which benefit has been granted by this Court. CWP No. 4202 of 2009 3 I have heard the counsel for the parties and have gone through the records of the case. The Management has put forth its case that the appointment of respondent No. 1-workman was through a contractor and, therefore, his appointment was a contractual appointment and determination of the services or non-renewal of the contract would fall under Section 2 (oo) (bb) of the Act which would not entitle him to the benefit of Section 25-F of the Act as this termination would not amount to retrenchment. The onus to prove that the appointment of the workman was on contract basis was on the Management. As is apparent from the statement of MW-1 Surinder Kumar, SDO, he has not named any person who was appointed on contract basis through a Contractor who has further engaged the workman as a Driver. Even in the cross-examination, MW-1 Surinder Kumar, SDO, admits the fact that the workman has not been appointed on contract basis. No document has been produced on record to substantiate the factum that the workman has been appointed through a contractor as not evidence has been led by the Management either oral or documentary which would substantiate that any contractor was given the contract to engage respondent No. 1-workman as a Driver. In the absence of any evidence on the record, the pleadings, as made by the Management, have been rejected by the Labour Court on consideration of the evidence which has been led by the parties. The Award, therefore, with regard to the finding that the service of the workman has been terminated in violation of the provisions of Section 25-F of the Act cannot be faulted with and the same is accordingly upheld. As regards the relief of full back wages granted by the Labour Court, the same needs to be interfered with. It is not in dispute that the CWP No. 4202 of 2009 4 workman is a Driver and, therefore, would have worked for sustaining himself and his family. At this stage, counsel for respondent No. 1-workman, on instructions from Rajbir-respondent No. 1, states that the workman is willing to forego 50% of his back wages voluntarily. In view of the statement made by the counsel for respondent No. 1, the Award passed by the Labour Court is modified to the extent that the workman-Rajbir son of Sh. Phaggu Ram shall be entitled to the benefit of reinstatement in service with continuity thereof and 50% back wages from the date of demand notice. The petition stands disposed of with above observation. ( AUGUSTINE GEORGE MASIH ) JUDGE January 27, 2010 pj