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Judgment
By Court - Having heard learned counsel for the parties, the delay in filing the Letters Patent appeal is condoned.
Heard learned counsel for the parties on the merits.
Learned counsel for the appellant submitted that the Labour court has committed serious error of law by awarding full back wages to the employee, who, in fact, was appointed in the year 1995 and served till 1996 in different organization and was transferred in the appellant-organization only in the year 1996 and thereafter he worked in appellantorganization only upto the month of October, 1998 or November, 1998, as per the averment of the respondentworkman himself. Therefore, the workman worked, according to himself, to the period of about two years only. It is submitted that the plea of the appellant was that the respondentworkman did not turn up and, in fact, he abandoned the service.
However, after considering of the pleas of the appellant, the Labour court held that the appellant wrongfully denied the service to the respondentworkman and passed an order of reinstatement with all consequential benefits as well as the monetary benefits.
The learned counsel for the appellant submitted that in view of the Supreme Court judgment, delivered in the case of Nagar Panchayat Kharkhauda Vrs. Yogendra Singh, reported in (2005)13 S.C.C. 428, all back wages are not to be paid as a matter of course and various factors pertaining to be considered and pleading and proof necessary in making award of back wages.
We found from the impugned award dated 24.11.2004 that the Labour court straightway without discussing the plea whether the back wages should be awarded, passed the order to pay the entire back wages. We are of the considered opinion that there is no material to indicate that the respondent-workman was not in gainful employment during that period and he raised the dispute after one year of his alleged wrongful termination of the service; whereas the period of limitation under Bihar Shops & Establishment Act is only ninety days. Therefore, in the facts and circumstances of the case, we modify the award to the extent that the respondentworkman shall be entitled to 50% of the back wages, instead of full back wages, till the date of award as the Establishment has already been closed.
The Letters Patent Appeal is, accordingly, partly allowed.