IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.205 of 1993
Date of decision: 20.11.2009.
Executive Engineer, Provincial Division, PWD (B&R) Branch, Jind.
....Petitioner
versus
Shri Ram Kishan and another ...Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Aditya Kumar Sharma, Advocate, for the petitioner.
Mr. D.S.Nalwa, Additional Advocate General, Haryana.
-----
1. Whether reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the reporters or not ?
3. Whether the judgment should be reported in the digest ?
----
K.Kannan, J. (Oral)
1. The award under challenge is a direction for reinstatement
with continuity of service and full back wages from 09.04.1991 and back
wages curtailed to some measure from the date when he was originally
terminated and when proceedings were pending in various Courts. The
workman has gone through fairly a long period of litigation. When the
matter had been taken up to the Hon’ble Supreme Court to fend off a
defence by the management that they were not an ‘industry’ coming
within the purview of the Industrial Disputes Act, the case went for fresh
adjudication from the Hon’ble Supreme Court on 13.12.1988 to address
the claim of the workman who complained that he had been terminated
from service after more than 5 years of service without conforming to the
Civil Writ Petition No.205 of 1993 – 2-
statutory mandate of Section 25-F of the Industrial Disputes Act.
2. The contention of the management was that although the
workman had completed 240 days of continuous service, he was a work
charged employee and due to the dismantling of the machines, there was
no work available and therefore, his services were terminated. The work
charged employee whose services were no longer required was still a
person who was entitled to observance of the statutory mandate if the
exception under Section 2(oo)(bb) was not attracted and on such a basis,
the Labour Court rejected the contention of the management and granted
to him the relief of reinstatement.
3. The learned counsel Shri Nalwa appearing for the State
would contend that even if there was violation of Section 25-F, the relief
of reinstatement ought to have been examined with reference to the
nature of engagement and the availability of work. According to him,
the relief of reinstatement ought not to have been made and the Court
could have granted only compensation. The case has been pending since
1993 and the relief of reinstatement itself has become unworkable in
view of the fact that the workman had gone well past his age of
superannuation which is admitted by the counsel as 60 years if he had
been in service as a driver. By the fact that the workman had been born
on 20.02.1939, if he had been in service, the time of superannuation
would have been 20.02.1999. the learned counsel submits that there is
no specified age of termination for superannuation for work charge
workman. Taking into consideration that for regular workman the age
of superannuation would have been 60, for persons of the category of
Civil Writ Petition No.205 of 1993 – 3-
drivers, I take 60 to be the age of superannuation. In view of the
changed circumstances, when the workman could not obtain
reinstatement, I do not want to examine the situation that the Labour
Court ought not to have directed reinstatement and it could have awarded
only compensation. The compensation also cannot have a whimsical
figure and it ought to have a bearing on the number of years that the
workman had put in, his salary, the loss of income that was occasioned
on account of illegal termination, etc. In this case, there had been a relief
of reinstatement which however was not given effect to by virtue of the
order of stay. The workman could only be entitled to a compensation in
real terms and the salary which he would have earned. Before this Court,
in the application filed by the workman for early disposal of the case, he
has stated that he was living a life of semi-starvation and that he had no
source of income. The law has changed from the time when the case was
disposed of in that it expects the workman to lead definite evidence
about his employment status before he could stake a claim for full back
wages. The Labour Court had already granted back wages for the period
between 20.02.1981 to 01.10.1984, 13.04.1985 to 12.12.1988 and
09.04.1991 onwards. The Labour Court had rejected the claim to any
wages from 02.10.1984 to 12.04.1985 and 13.12.1988 to 08.04.1991.
The periods when the Labour Court found the workman to be not entitled
to any back wages shall be retained. As regards provision for full back
wages for the period from 20.02.1981 to 01.10.1984, 13.04.1985 to
12.12.1988, the full back wages which has been awarded already by the
Labour Court shall stand reduced to 50% of the back wages. Again for
Civil Writ Petition No.205 of 1993 – 4-
the period from 09.04.1991 onwards, the Court had awarded full back
wages, but in my view, it shall be restricted to 50% upto the date of
passing of the award namely upto 22.06.1992. The workman would be
entitled to full back wages from the date when the award was passed i.e.
from 22.06.1992 till date when the workman would have been
superannuated, if he had been in service i.e. till 20.02.1999. The amount
shall be paid by the management within a period of six weeks from the
date of the order, failing which it shall carry interest @ 9% per annum.
4. Subject to these modifications, the writ petition is dismissed.
(K.KANNAN)
JUDGE
20.11.2009
sanjeev
