State of
Punjab & Ors Vs.
Des Bandhu [2007] Insc 288 (15 March 2007)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a Division Bench of
the Punjab and Haryana High Court dismissing the writ petition filed by the
appellants.
In a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947
(in short the 'Act'), the Presiding officer, Labour Court, Gurdaspur (in short
the 'Labour Court') held that the respondent was entitled to be reinstated with
continuity of service with full back wages from the date of termination till
actual reinstatement.
The case of the workman as briefly stated in the demand notice dated
3.12.1997 and statement is that he was appointed as surveyor by the concerned
Superintending Engineer on 15.2.1988 and worked as such for more than 240 days
in 12 calendar months and that he was non-employed without any notice/written
order from 26.3.1989 which was dishonest, illegal as it was done in
contravention of Sections 25-F, N and G of the Act without payment of
retrenchment compensation etc. and that juniors to him have been retained in
service and fresh recruitments have also been made after termination of service
of the workman and that he was getting the pay scale of Rs.400-600 at the time
of termination of his services. It was further pleaded that no termination
order was given to him. Assuming that he is still in service, he filed the
Civil Suit on 28.2.1990 for declaration that he is continuing in service of the
employer and the said suit was dismissed by the Civil Court on 23.12.1991 and
the appeal dated 17.1.1992 preferred against the said order dismissing his suit
was also dismissed by the Appellate Court on 8.2.1997. It was further pleaded
that since 1989, he has been taking action for his redressal for treating him
to be in continuous service without challenging the order of termination dated
26.3.1989 in the Civil Court and the Civil Court declined to give him any
relief regarding continuing in service and the findings of the Civil Court that
he is no longer in service after 26.3.1989 and his services have to be treated
to have been terminated which fact was not subject matter of the above suit. In
the end, it was prayed that the reference may be accepted and the employer be
directed to reinstate him with continuity of service and with full back wages
from the date of termination till his reinstatement. The Labour Court accepted
the plea and passed the award as afore-noted. The same was challenged before
the High Court by filing a writ petition.
In the writ petition, the appellants took the stand that the reference was
highly belated and the respondent was not entitled to any relief and he worked
on purely temporary basis i.e. on 89 days basis. It was also specifically
pleaded that even otherwise he had not worked for 240 days as erroneously held
by the Labour Court and the High Court. Considering the fact that in many cases
the effect of non-compliance of Section 25-F of the Act involved and
entitlement of back wages was considered, by order dated 11.8.2005, Dr. Rajiv
Dhawan, learned Senior counsel was requested to act as Amicus Curiae. During
the course of hearing Dr. Dhawan has referred to various decisions of this
Court and the view expressed by various Benches.
Main stand of the appellants appears to be the belated approach for
adjudication in the Industrial Forums after having taken resort to filing of
suit and an appeal against the decree passed in the said suit.
Learned counsel for the respondent has submitted that merely because the
respondent had under erroneous advice moved the Civil Court, he should not be
deprived of the relief granted.
In Anil Kumar Puri v. Presiding Officer, Labour Court, Chandigarh and
Another (2000(9) SCC 129) it was held by this Court that there was no
deliberate delay on the part of the workman. In that case nearly 5 years had
been spent in pursuing the remedy before the Central Administrative Tribunal.
On the peculiar facts of the case this Court ordered reinstatement but restricted
the back wages to 50%.
It is to be noted that at the time of issuance of notice on 8.7.2003 interim
stay was granted. The interim order of stay was made absolute subsequently. It
has been specifically pleaded that purported industrial dispute was raised
after 9 years of alleged termination and a demand notice was issued in
December, 1997. The alleged order of termination was passed in February, 1989.
The delay was occasioned to a considerable extent due to pendency of Civil Suit
and the appeal. In view of these peculiar facts, it would be appropriate to
modify the order passed by the Labour Court as affirmed by the High Court to
the following effect:
1. Instead of reinstatement and/or payment of back wages for a certain
period let the appellants pay a sum of Rs.60,000/- to the respondent. This
shall be in full and final settlement of the claims of the respondent.
2. Direction for reinstatement stands vacated. The payment shall be made
within a period of eight weeks from today by a demand draft drawn in the name
of respondent of any Nationalised Bank.
3. If the amount is not paid within the stipulated time the order of the Labour
Court as affirmed by the High Court shall stand revived.
Appeal is accordingly disposed of. There will be no order as to costs.
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