S.S. Nijjar, J. - (1.) IN this petition under Article 226/227 of the Constitution of India, petitioner seeks the limited relief of modification of the award dated 28.3.2000 passed by the Labour Court, Arnbala, to the extent that it denies 50% back wages to the petitioner after the date of demand notice.
(2.) THE petitioner was engaged as a Store Helper by P.W.D. department at Kamal on daily wages on 6.9.1981. His services were illegally terminated by the department on 20.5.1988. On 23.3.1993, the petitioner served a demand notice on the employer. On 19.8.1993, the dispute was referred by the State Government to Labour Court, Ambala for adjudication. On 13.6.1996, the department was proceeded ex -parte by the Labour Court. On 14.8.1996, the Labour Court passed an ex -parte award directing the reinstatement of the petitioner with continuity in service with full back wages. This award was challenged by the department in C.W.P. No. 15694 of 1997. The writ petition filed by the department was dismissed regarding the challenge of the department for reinstatement and continuity of service. However, award to the extent of full back wages was set aside. The matter was remanded back to the Labour Court, Ambala with a direction to give opportunity to the parties to lead evidence on that issue and decide afresh. It was also made clear that respondent No. 1 i.e. petitioner in the present writ petition, shall not be entitled to back wages for the period between the termination of service and 23.3.1993 i.e. the date on which the demand notice was served. On remand, the Labour Court examined the matter afresh and passed the impugned award dated 28.3.2000 denying 50% of the back wages to the petitioner. A perusal of the award shows that the petitioner appeared as a witness, in support of his case. He stated that since the termination of the service and reinstatement, he remained unemployed and he did not perform any job at any place. One Om Parkash, SDE, Yamuna Nagar appeared as MW -1 to resist the claim of the petitioner -workman. On the basis of this evidence led by the parties, the Labour Court, Ambala, gave a finding to the effect that the Management has not produced any evidence in order to show that the workman was gainfully employed from 23.3.1993 i.e. the date on which he served demand notice till reinstatement. In -spite of this, the Labour Court denied 50% of the back wages on the basis of conjectures and surmises. The Labour Court holds that it is highly unbelievable the workman whose services were terminated cannot be said to remain unemployed, without earning till his reinstatement. The workman is quite healthy man. He is supposed to meet both ends. The Labour Court specifically holds that "it is a common fact that the employees of the department do not take any pains to ascertain as to whether the workman was doing something somewhere else". The Labour Court observed that "the callous attitude of the Government department regarding the producing of me appropriate evidence in the Court also causes great loss to the State Exchequer." The Labour Court also observed that : - "Time and again there are several legal precedents to reinstate with full back wages but the Industrial Tribunal is appointed to consider the circumstances on each case while granting back wages." With the aforesaid pious observation, the Labour Court proceeded to disregard the well settled position of law. A Full Bench of this Court considered the law with regard to grant of back wages in the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court, Rohtak, 1979(3) SLR 223. After noticing the entire case law, the Full Bench in paragraph 6 of the judgment observed as follows : - "However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. and others , wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It lias been held there is no uncertain terms: - "Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages expect to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer." And again : "Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure". The aforesaid view has been reiterated by their Lordships in G. T. Lad and others v. Chemical and Fibres India Ltd., 1979 L I C 290." A perusal of the aforesaid clearly shows that the Supreme Court as well as this Court has held that ordinarily a workman whose services were terminated would be entitled to full back wages expect to the extent he was gainfully employed during enforced idleness. It has also been held that in order to depart from the aforesaid rule, the party objecting to the application of the normal rule must establish the circumstances necessary to depart from the rule. In the present case, the Labour Court gave a categorical finding that the Management has utterly failed to produce any evidence that the petitioner was gainfully employed during the period when he gave the demand notice till his reinstatement. Inspite of the aforesaid clear finding of fact and inspite of clear law laid down by the Supreme Court and the full Bench of this Court, the relief of full back wages has been denied to the petitioner. I am of the considered opinion that the award of the Labour Court is contrary to the settled law. The award is also based on no evidence. The petitioner has already been penalised for any delay that he may have caused by denial of back wages from 20.5.1988 to 23.3.1993. There was no justification for denying the full back wages any further. In view of the above, the petition is allowed. The impugned award dated 28.3.2000 is modified to the extent that the petitioner shall be entitled to full back wages from 23.3.1993 till reinstatement instead of 50% back wages awarded by the Labour Court. No order as to costs.
(3.) PETITION allowed.;