JUDGMENT
S.S. Nijjar, J.
1. This writ petition is connected with CWP No. 1071 of 1987 which has been decided by this Court just before taking up the present writ petition. For actual aspects of the matter, the reference can be made to the decisions rendered in the earlier writ petition.
2. Present writ petition has been filed by the workman who was respondent No. 3 in CWP No. 1071 of 1987. During the pendency of the proceedings, after the matter had been remanded back, the respondent-management had made an application asking the workman to supply information regarding his assets. Certain interrogatories were served on him which are contained in Annexure P-6. The application is stated to have been made under Order 11 Rule 1 read with Section 151 CPC. The Labour Court has passed an order on 29.10.1986 which is impugned in this writ petition directing the respondents to tender the documentary evidence as available with them and also file an affidavit regarding other averments. The application made by the respondent-management was opposed by the petitioner-workman. Learned counsel for the petitioner has submitted that the Labour Court acted wholly beyond jurisdiction. Learned counsel for the respondents, however, has submitted that since the petitioner has been gainfully employed throughout the proceedings, the information is necessary to prove the plea of the management that the petitioner is not entitled to any back wages. He has further submitted that the writ petition is not maintainable as this Court while exercising jurisdiction under Articles 226/227 of the Constitution of India does not sit as a court of appeal. In support of this submission, he has relied upon Beant Singh v. UOI etc., 1977 Current Law Journal 17. Furthermore, no manifest injustice has been done to the petitioner. Therefore, this Court would not exercise jurisdiction under Articles 226/227 of the Constitution of India. Learned counsel further submitted that there is no error apparent on the face of the order. Therefore, this Court would not interfere.
2. I have considered the submissions made by the learned counsel for the parties. I am of the considered opinion that the order passed by the Labour Court is wholly without jurisdiction. The application filed by the respondent-management is in the nature of a fishing enquiry. An effort has been made to scandalise the petitioner by asking the sort of questions which are wholly irrelevant for the controversy.
3. The petitioner has been asked as to whether he had constructed his own house.
How much money he had spent on the building materials, electrical fitting, painting and white-washing. He has been asked to give details of the amount paid to the Contractor. The petitioner has even been asked as to when he was married? How many children he had a alongwith the dates of birth? He has been asked to supply details about the education being received by his children. He has even been asked about the monthly expenses of petrol of his scooter. The application thereafter questions the petitioner about his earning as an Oath Commissioner. The petitioner has been asked to state his monthly ration bills. He has been asked as to whether was us the owner of the T.V. set and Fridge. He has been asked to explain the source of money for purchase of these things. The petitioner filed a detailed reply. It was specifically submitted that the interrogatories do not relate to subject of gainful employment of the workman. It was further stated as follows:-
“It is further submitted that the respondent/management has agreed to re-instate the workman/claimant fully admitting that the order of termination was illegal, void, ab initio. The fact of re-instatement is always in the nature as if the workman/claimant was in service throughout with the respondent/management and therefore entitled to all the back-wages, increments, revision of grades, promotions in the intervening period. The respondent/management having failed to fix the initial wages and allowances of the workman as on re-instatement in the light of the orders passed by this Court is directly committing the Contempt of Court and is forcing the workman/claimant to quit by paying meager salary in these hard days instead of the amount of salary he would have drawn.
It is, therefore, prayed that the applications may kindly be dismissed and instead it may kindly be directed that the respondent/management should fix my salary upon the above principles and to pay arrears accordingly.”
4. Without taking into consideration the provisions of Order 11 or the factual averments made by the petitioner, the Presiding Officer, Labour Court passed the impugned order dated 29.10.1986 which is as follows:-
“29.10.86
Present: Workman in person
Sh. M. Puri, for Management.
Management has filed application asking the workman to supply information regarding his assets. Workman is directed to file an affidavit regarding all the documents which are available with him also to file affidavit regarding non-availability of documents. Workman is directed to file reply to the interrogatories supported by affidavit. He should tender all the documentary evidence as available with him and also to file affidavit regarding other averments.”
5. A perusal of the aforesaid order shows that it suffers from the vice of arbitrariness and non-application of mind. The order is wholly bereft of any reasons in justification of the direction given to the petitioner to answer interrogatories. The Labour Court should have examined the matter to see whether any of the interrogatories were relevant for deciding the issue i.e. whether the petitioner had been gainfully employed during the interregnum. Under Order 11 Rules 6 and 7 of the C.P.C., the Labour Court ought to have examined the interrogatories to see if they were scandalous, irrelevant and did not exhibit bona fide for the purpose of the suit or the matters which were under enquiry. The Management having already reinstated the petitioner in service Had to prove by leading positive evidence that the petitioner had been gainfully employed. In the absence of such proof, there would have been no justification for denial of back-wages. It was not for the workman to supply the material to the respondent-Management. It has been settled by a catena of authorities of the Supreme Court and various High Courts that it is incumbent upon the Management to prove that the workman was gainfully employed to justify denial of back-wages for the period which the workman was forced to remain idle. Reference at this stage can be made to a Full Bench decision of this Court in the
case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court and Anr., (1979)81 P.L.R. 720. The submission of the learned counsel in the aforesaid case was as follows:-
“4. Mr. N.K. Sodhi, appearing for the petitioner very fairly concedes that the sole point that calls for determination in the present case is whether the grant of full back wages to the respondent workman, without his having made a specific claim therefore or led sufficient evidence in support thereof, is sustainable in law. It was pointed out that no specific issue was framed on this point by the Labour Court…..” Chief Justice S.S. Sandhawalia speaking for the Full Bench observed as follows:-
“5. There is no gain saying the fact that there has been some divergence of pinion in the various High Courts on the point earlier. Varying views had been expressed as to whether precisely the onus lay with regard to the claim to back wages and also with regard to the striking of the issues or the necessary point for determination thereof by the Labour Court itself. Within this Court a Division Bench in Daljeet and Co. Private Ltd. Ropar v. The State of Punjab and Ors., A.I.R. 1964 Punj. 313 has held that the dismissed employee is reinstated with continuity of service, the normal relief would be the payment of full wages from the date of dismissal, and it is for the employer to raise this matter and prove that the employee had been earning wages for the whole of any part of the period in question. The aforesaid view has been consistently followed in this Court and reaffirmed in Harbans Singh and Ors. v. The Assistant Labour Commissioner and Ors., (1976)78 P.L.R. 221. The Allahabad High Court was inclined to take a similar view in Postal Seals Industrial Co-operative Society Ltd. v. Labour Court, Lucknow, (1971) L.L.J. 327 and the same tenor is the judgment of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kumdar Mandal, (1971) L.L.J. 508. 6. However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors., A.I.R. 1979 S.C. 75 wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It has been held therein in no uncertain terms:
“Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer”
“Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure” The aforesaid view has then been reiterated by their Lordships in G.T. Lad and Ors. v. Chemicals and Fibres India Ltd., 1979 Labour & Industrial Cases 298.”
6. The aforesaid enunciation of law leaves no manner of doubt that it was for the employer to establish that the petitioner had been gainfully employed. The interrogatories which have been served upon the petitioner are frivolous, vexatious and scandalous. They are wholly irrelevant to the issue involved. They have been served on the petitioner merely to delay the proceedings. The application of the Management cannot be said to have been made bona fide. Due to the pendency of the various proceedings, the petitioner has been denied the benefit of packages since 1975.
7. In view of the above, the writ petition is allowed. Order of the Presiding Officer
Labour Court, Chandigarh dated 29.10.1986 is hereby quashed. No costs. The parties
are directed to appear before the Labour Court, Chandigarh on 24.2.2003. The Labour
Court is directed to decide the entire matter within four weeks thereafter.