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Judgment
Heard learned Counsel for the parties on the application for condonation of delay. There is delay of 130 days in filing the instant appeal.
After hearing learned Counsel for the parties, the delay in filing the appeal is condoned.
At the request of learned Counsel for the parties, heard on merits.
Learned Counsel for the Appellant submitted that the dismissal order has been set aside by the Labour Court vide impugned Award dated 05.10.2009 on the ground that chargesheet was given to the employee by unauthorized person and the order of dismissal from service also was passed by incompetent person, otherwise the guilt was proved. It is also submitted that the Labour Court has awarded the back wages to the extent of 50% without examining the aspect of the matter that the workman was terminated in the year 1993 and the Award was passed by the Labour Court on 05.10.2009 then in that situation, it was the duty of the employee to prove that he was not in gainful employment during that period from 1993 to 2009 and without assigning any reason, huge amount of back wages have been awarded.
We have considered the submissions of the learned Counsel for the Appellant and the counsel for the Respondent workman. We are of the view that so far as termination of the service of the workman is concerned, that was wholly without jurisdiction being ordered by a person who was not authorized and competent to pass the order as well as the chargesheet was issued by a person who could not have issued the chargesheet, therefore, order to reinstate the workman was rightly passed by the Labour Court and learned Single Judge upheld the finding of the Labour Court on this issue. However, so far as award of 50% of back wages is concerned, we do not find any ground in the Award dated 05.10.2009 justifying the award of back wages and that issue has not been considered by the learned Single Judge and particularly, this fact that the employee did not work for such a long period and it cannot be presumed that he was not in gainful employment during this entire period and as such, awarding 50% of back wages and other benefits to the Respondent workman will not be appropriate. Therefore, this L.P.A. is allowed to the extent of quashing of 50% back wages. However, the Petitioner is entitled to other consequential benefits except the back wages with full continuity of service.
With this modification in the impugned Award, this L.P.A. is allowed partly, as mentioned above.