Palwinder Singh vs Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar & Ors.

Palwinder Singh …. Petitioner

Versus

Presiding Officer, Industrial Tribunal-cum--Labour Court, Hisar and others

…. Respondents.

Present: Mr. Amit Singla, Advocate, for the petitioner.

Mr. B.S. Mittal, Advocate, for respondents No.2 and 3.

*** KIRTI SINGH, J. (Oral)

The present writ petition has been filed by the petitioner, invoking the jurisdiction of this Court under Articles 226/227 of the Constitution of India, seeking quashing of the award dated 26.08.2013 (Annexure P-1), passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar, in Reference No.7 of 2011, to the limited extent that the learned Labour Court, while directing reinstatement of the petitioner into service, has declined to grant him back wages.

The pleaded facts of the case are that the petitioner was appointed as a Driver by respondent No.2-Society to ply the bus of respondent No.3-College with effect from 23.08.2004, and that he continued to work on the said post, without any complaint, up to 25.12.2008, when his services were

terminated verbally and without notice, payment of wages in lieu of notice and without payment of retrenchment compensation as required under Section 25-F of the Industrial Disputes Act, 1947. It is also his case that employees junior to him were retained in service, in violation of Section 25-G of the Act, and that after his termination two more drivers were engaged by the respondents without affording him an opportunity of re-employment, in violation of Section 25-H of the Act.

On an appreciation of the pleadings and the evidence led by the parties, including the attendance and log-book record of the college bus produced by the respondents themselves (Ex.P3 and Ex.P4), the learned Labour Court returned a finding of fact that the petitioner had remained in continuous employment of the respondents from 23.08.2004 to 30.12.2008, and that the intervening breaks relied upon by the respondents were attributable only to the summer vacations of the college, and not to any voluntary abandonment of service. It was further held that the petitioner had rendered more than 240 days of continuous service, entitling him to the protection of Section 25-F of the Act, and that since admittedly no notice, wages in lieu of notice, or retrenchment compensation had been paid to him at the time of termination, his termination was illegal being violative of Section 25-F of the Act. A violation of Section 25--H of the Act was also found, inasmuch as new drivers were engaged by the respondents on the buses subsequently provided by the Deputy Commissioner, without affording the petitioner an opportunity of re-employment. However, the plea of violation of Section 25-G of the Act was not accepted for want of any specific pleading as to the identity of a junior employee retained in service.

Notwithstanding these findings in favour of the petitioner, the learned Labour Court, while directing his reinstatement with all consequential benefits, declined to grant him back wages, for the specific reason that the petitioner had admittedly not worked during the intervening period.

Learned counsel for the petitioner submits that once it stands concluded that the termination of the petitioner's services was illegal and was in violation of the mandatory provisions of Sections 25-F and 25-H of the Act, and that the petitioner was not at fault at any stage, the denial of back wages to him is legally unsustainable and contrary to the principles of natural justice.

Learned counsel appearing for respondents No.2 and 3, per contra, supports the impugned award and submits that the grant of back wages is not an automatic or necessary consequence of a finding that the termination of a workman is illegal; it remains a matter of discretion, to be exercised having regard to the facts and circumstances of each case, including the question whether the workman remained unemployed and was ready and willing to serve during the intervening period. It is submitted that the petitioner neither pleaded nor placed on record any material to show that he remained unemployed during the said period, and that his claim regarding minimum wages was also not substantiated by any comparative material before the learned Labour Court.

I have heard learned counsel for the parties and have perused the impugned award as well as the paper book.

It is well settled that reinstatement with full back wages does not follow as an automatic or necessary consequence merely because the termination of a workman's services is found to be illegal or in violation of Section 25-F of the Industrial Disputes Act, 1947. The grant of back wages is

essentially discretionary in nature and has to be moulded in the facts of each case, having regard to factors such as the nature and length of employment, the manner in which the termination came about, and whether the workman was gainfully employed elsewhere, or otherwise did not work, during the intervening period. In the present case, the learned Labour Court, while granting the substantive relief of reinstatement with all consequential benefits, has consciously declined back wages for the specific and stated reason that the petitioner did not work with the respondents during the intervening period, and could not establish that he had remained unemployed throughout. This is essentially a finding of fact, arrived at upon an appreciation of the material on record.

Trite to say that this Court, while exercising jurisdiction under Articles 226/227 of the Constitution of India, does not sit in appeal over the findings recorded by the Labour Court and would not ordinarily re-appreciate the evidence so as to arrive at a conclusion different from the one reached by the learned Labour Court, unless the finding is shown to be perverse, based on no evidence, or otherwise vitiated by an error of law apparent on the face of the record. No such infirmity has been shown in the present case.

For the reasons recorded above, finding no merit in the present writ petition, the same is hereby dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.