S.S.NIJJAR, J. - (1.) The petitioner was working as a Conductor with respondent No. 1. His services were terminated on 15/04/1982. On the demand of the petitioner, an industrial dispute was raised. The Labour Court framed the following issues:- "1. Whether there has been a fair and proper enquiry?
(2.) Whether the order of termination of services of the workman is justified and in order? Relief." 2. The respondents had sought to justify the order of termination on the ground that the workman is guilty of serious misconduct. The Management had conducted an enquiry in accordance with the rules. After examining the record, the Labour Court came to the conclusion that the enquiry had been conducted in breach of rules of natural justice. The petitioner had pleaded not guilty on 4/12/1981. No time was allowed to the workman for inspection of the record or for furnishing the list of witnesses required by Rule 8(11) of the Punjab State Civil Services (Punishment and Appeal) Rules, 1970. It was further observed that the enquiry officer proceeded to record the evidence against the workman on the same date. Relying on a Division Bench judgment of the Himachal Pradesh High Court in the case of S.D.Bhardwaj v. Union of India, 1983 (1) S.L.R 32, it was held that the breach of Rule 8(11) of the Punjab State Civil Services (Punishment and Appeal) Rules, 1970 would vitiate the enquiry. I am of the considered opinion that the Labour Court rightly quashed the findings of the Enquiry Officer. Faced with the situation, the Management led evidence to prove that the workman as a Conductor had collected Rs. 14.85 ps. from nine passengers who travelled from Solan to Slohgarh. These passengers were not issued tickets. The Labour Court held this evidence to be inadmissible on the ground that there were no pleadings of Management with regard to embezzlement in the written statement. In view of the above, the workman had been directed to be reinstated with continuity of service. However, the back wages have been denied to the workman on the ground that the Management had failed to prove the misconduct, "only for technical reasons." I am of the considered opinion that the award of the Labour Court denying the back-wages to the workman cannot be justified. It is by now well settled the Management would have to prove that the workman had been earning wages during the period of unemployment for denial of back-wages. I find support for this view from a Full Bench judgment of this Court in the case of Hari Palace, Ambala City v. Presiding Officer, Labour Court and Anr. 1979 (81) Punjab Law Reporter 720. The Full Bench observed as follows: " 5. There is no gainsaying the fact that there has been some divergence of opinion in the various High Courts on the point earlier, varying views had been expressed as to where precisely the onus lay with regard to the claim to back wages and also with regard to the striking of the issues or the necessary point for determination thereof by the Labour Court itself. Within this Court a Division Bench in Daljeet and Co. Private Ltd., Ropar v. State of Punjab and Ors. AIR 1964 Punjab 313, has held that the dismissed employee is reinstated with continuity of service, the normal relief would be the payment of full wages from the date of dismissal, and it is for the employer to raise this matter and prove that the employee had been earning wages for the whole or any part of the period in question. The aforesaid view has been consistently followed in this Court and reaffirmed in Harbans Singh and Ors. v. Assistant Labour Commissioner and others, 1976 (78) PLR 226. The Allahabad High Court was inclined to take a similar view in Postal Seals Industrial Co-operative f Ltd. v. Labour Court, Lucknow, 1971-I-LLJ-327 and the same tenor is the judgment of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kumdar Mandal, 1971-I-LLJ-508. 6. However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. and Ors. AIR 1979 SC 75 : 1979 (2) SCC 80 : 1978-II-LLJ-474 wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It has been held therein in no uncertain terms: "Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during his 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 then been reiterated by their Lordships in G.T.Road and others v. Chemicals and Fibres India Ltd. 1979 LIC 298."
(3.) It, therefore, becomes apparent that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating a departure. However, Mr. Sran has vehemently argued that once the Labour Court had denied the back wages, this Court would not interfere with the award while exercising writ jurisdiction under Articles 226/227 of the Constitution of India. In support of the aforesaid proposition, the learned counsel for the State has relied on a judgment of the Supreme Court in the case of P.G.I. of M.E. and Research, Chandigarh v. Raj Kumar, 2001-I-LLJ-546. In that case, the question posed by the Supreme Court was as follows at p. 547 of LLJ : "7......The only limited question in these three appeals is whether the Labour Court in the facts and circumstances of the matter in issue was justified in awarding 60% of the back wages while ordering reinstatement with continuity of service.";