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CASE NO.: Appeal (civil)  2139 of 2007

PETITIONER: State of Punjab

RESPONDENT: Anil Kumar

DATE OF JUDGMENT: 25/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No.20373 of 2005)

Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the order passed by a  Division Bench of the Punjab and Haryana High Court  summarily dismissing  the writ petition filed by the  appellant.

Background facts in a nutshell are as follows:

The respondent was engaged in the Punjab Roadways,  Jalandhar Depot on daily-wage basis with effect from  6.2.1981. He was engaged on such basis in the Jalandhar  Depot No. 2 from 15.9.1981 to 27.12.1981. Again, he was  engaged on daily-wage basis in Punjab Roadways, Moga  from 16.2.1983 to 30.9.1985. Such engagements were for  specific periods. As there was no work for the respondent in  Punjab Roadways, Moga, he was not engaged after  30.9.1985.   

Respondent filed civil suit in the Civil Court at  Jalandhar claiming that he was in continuous service.  The  learned Civil Court decreed the suit holding that the  respondent was deemed to be an employee of appellant and  he is entitled to back wages from the date of institution of  the suit.  

An appeal was filed in the Court of District Judge,  Jalandhar by the appellant.  The suit was withdrawn by the  respondent and as such the judgment and decree dated  9.2.1991 lost their force.  On 9.5.1994 respondent again  filed a Civil Suit for declaration that his service in Punjab  Roadways stood regularized since 5.2.1981.  The said suit  was dismissed by the Civil Judge (Jr. Division) on  12.10.1996.  Respondent filed an appeal in the Court of  District Judge, Jalandhar. The said appeal was again  withdrawn on 17.9.1998.

 A demand notice under the provisions of the

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Industrial Disputes Act, 1947 (in short the ’Act’) was served  on the appellant on 29.9.1998 by the respondent.  The  matter was referred to the Labour Court, Jalandhar, for  adjudication under the Act.  Appellant filed written  statement raising preliminary objections that (a) the  reference was bad being belated, (b) the discontinuance  was justified and (c) the appellant has already availed the  opportunity in the civil court. The Labour court, Jalandhar  passed an award directing  reinstatement with 40% back  wages from the date of demand notice i.e. with effect from  29.9.1998. A writ petition i.e. CWP No. 4748 of 2005 was  filed by the respondent for the direction to the present  appellant to implement the Award dated 12.11.2003.  He  joined duties on 1.4.2005.   

The appellant also filed a Writ Petition before the High  Court which was numbered as Civil Writ Petition No. 6927  of 2005.   

The High Court dismissed the writ petition filed by the  appellant. The High Court noted that the workman had  worked for more than 240 days of service before his  services were terminated and accordingly the award of the  Labour court did not warrant any interference.

In support of the appeal, learned counsel for the  appellant submitted that the civil suit filed, was thoroughly  misconceived.  In view of Section 2(oo)(bb) of the Act on  expiry of the fixed period for which engagement was done,   there was no scope for any direction for reinstatement.  The  demand for reference under the Act was made after 13  years.  

Learned counsel for the respondent on the other hand  submitted that there was a clear admission before the  Labour Court that the respondent had worked for more  than 240 days.   

In view of the factual position as highlighted above, we  do not find any infirmity in the order passed by the Labour  Court as affirmed by the High Court so far as entitlement of  the respondent-workman to be re-instated.  

At the same time the fact that there was belated  approach cannot be lost sight of. Admittedly, there was  belated approach and the Labour Court was moved after 13  years.  

In the peculiar circumstances of the case while  upholding the direction for reinstatement, we direct that  the directions given by the Labour court as affirmed by the  High Court regarding payment of back wages need to be  modified.   

In the aforesaid background, the direction for  payment of back wages stands set aside while the direction  for reinstatement is maintained.

Appeal is allowed to the aforesaid extent. No costs.