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CASE NO.: Appeal (civil)  9042 of 2003

PETITIONER: State of Punjab & Ors

RESPONDENT: Des Bandhu

DATE OF JUDGMENT: 15/03/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

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

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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

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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.