Hoshiar Singh vs Presiding Officer, Labour Court-cum-Industrial Tribunal, Hisar

S.S. Sudhalkar, J.—This writ petition is filed by the workman challenging the award of the Labour Court dated 1.9.1998 (copy Annexure P/1) qua the denial of back wages when he was ordered to reinstated with continuity of service.

The factual position is that the petitioner was engaged as a Chowkidar on 15.9.1987 and worked upto T. 10.1992 when his services were terminated. He issued a demand notice on 1p2 5.7.1993.

I have heard learned counsel for the parties.

The Labour Court has held that the petitioner has not taken any interest in his reference and his evidence was closed by order of the Court. It is also held that there is an unexplained delay in raising the industrial dispute and that it cannot be presumed that he must , have remained unemployed throughout all these years and that for survival, he must have been striving here and there. The same reasons have been argued by learned counsel for the respondents supporting the award.

After hearing learned counsel for the parties, I find that it is not possible to accept the reasons given by Labour Court to deny the back wages. It is by no law required that the petitioner has to lead oral evidence. The petitioner can be satisfied with other evidence on the record and this cannot be a ground for not awarding the back wages.

Regarding unexplained delay, the ends of justice will be met if the back wages are awarded from the date of demand notice i.e. from the date when the petitioner first started moving to get his right decided.

It is also not possible to accept that the petitioner must have been employed somewhere. Because he was surviving in the post termination period, he cannot be said to be gainfully employed. Counsel for the petitioner has relied on the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court and another 1979 P.L.R. 720. It has been held by the Full Bench of this Court therein that ordinarily a workman whose service has been illegally terminate would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule and the party objecting to it must establish the circumstances necessitating departure. In this case no circumstances necessitating departure from this rule are shown.

In view of the above I am unable to accept the finding of the Labour Court and the part of the award denying the back wages deserves to be set aside.

In the result, this petition is allowed and the order of denial of back wages in the award dated 1.9.1998 is set aside and the petitioner is held entitled to full back wages from the date of demand notice.

Petition allowed.