Full Bench of this Court has held in Hari Palace, Ambala City v. The Presiding Officer & Ors.

Judgment

1. 2. To be referred to the Reporters or not ? Whether the judgment should be reported in the Digest ? Yes. M. JEYAPAUL, J. (ORAL). The petitioner/workman was engaged as a Pump Operator by the respondents on the salary of Rs. 750/- per month which was subsequently revised from 01.12.1986. The petitioner/workman contended that he was in continuous service upto 09.03.1988 and was sacked from the service on

10.03.1988. But the respondent/Management set up a plea that the petitioner/workman remained absent without leave or permission and did not report for duty. The Labour Court has observed that no believable evidence was produced by the respondent/Management to show that the petitioner/workman remained absent from duty. Entertaining the reference made before it, the Labour Court arrived at a finding that the petitioner/workman was retrenched without any notice, inquiry or compensation. But in a self contradictory observation, the Labour Court in its award held that the petitioner/workman was not entitled to back wages, inasmuch as the petitioner/workman failed to resume duty, inspite of the plea emanated from the respondent/Management to resume his duty. CWP No. 12351 of 1991 -2-

2. The Labour Court in its award set aside the order of retrenchment of the petitioner/workman and ordered for reinstatement with continuity of service but without back wages.

3. The petitioner/workman assails that part of the award which deprives the petitioner/workman the back wages he is entitled to for the period from the date of retrenchment which was held illegal to the date of resumption of duty pursuant to the order of reinstatement passed by the Labour Court.

4. The learned counsel appearing for the petitioner citing the decisions of this Court as well as the decision of the Hon'ble Supreme Court would submit that once the termination was found illegal by the Labour Court, the natural relief of back wages should have been ordered by the Labour Court. But in this case, the petitioner was deprived of the back wages on the self contradictory observation made by the Labour Court that the petitioner/workman failed to resume duty, inspite of the call made by the respondent/Management to resume duty.

5. Per contra, the learned Deputy Advocate General appearing for the respondent/State would submit that the petitioner/workman served only on daily wage basis. All of a sudden, he failed to report for duty and, therefore, the petitioner/workman was not entitled to any back wages as rightly held by the Labour Court, he would submit.

6. The Labour Court was pleased to disbelieve the version of the respondent/Management that the petitioner/workman failed to report for duty and that he remained absent without leave or permission. Having thus observed the Labour Court held that the retrenchment of service of the petitioner/workman was wrong and illegal.

7. But quite unfortunately a self contradictory observation has been made by the Labour Court, as rightly pointed out by the learned counsel CWP No. 12351 of 1991 -3- appearing for the petitioner that the petitioner failed to report for duty, inspite of the request emanated from the Management to resume duty. The question of resumption of his duty would not arise after the order of retrenchment was passed by the Management. If at all, the Management could establish that the petitioner remained absent from duty inspite of the request emanated from the Management to resume duty, the Labour Court would not have declared the order of retrenchment as illegal. Therefore, it is found that a wrong observation has been made in the subsequent paragraph of the award that the petitioner failed to report for duty inspite of the request made by the Management to resume duty.

8. At any rate, this Court is concerned with the issue as to whether the petitioner is entitled to back wages from the date of retrenchment to the date of resumption of duty as per the award of reinstatement passed by the Labour Court.

Way back in the year 1979, the Full Bench of this Court has held in Hari Palace, Ambala City Versus The Presiding Officer, Labour Court and another 1979 Punjab Law Reporter 720, that 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.

10. The aforesaid legal position was retireated by the Division Bench of this Court in The Patiala Central Co-operative Bank Ltd. Versus Mehar Chand 1998 (2) SCT 356.

11. The Division Bench of this Court in Randhir Singh Versus Presiding Officer and others 1995 (2) RCJ 578, has held as follows :- “8. If we see the awards of the Labour Court, no reason is stated as to why the back wages are restricted to 10% only. The fact that reinstatement has been ordered shows that the order CWP No. 12351 of 1991 -4- of termination of the services of the workmen was unjust and wrong and when this is so the workmen are entitled to full back wages. The workmen whose services had been illegally terminated will be entitled to back wages except to the extent he was gainfully employed during the enforced idleness.”

12. As per the above ratio, once it has been declared that the order of termination was unjust and wrong, the Workman in a normal course is entitled to full back wages. Of course, if there is any evidence to establish that he was gainfully employed during the enforced idleness, the Workman is not entitled to back wages for the said period.

13. In a very recent case in Anoop Sharma Versus Executive Engineer Public Heath Division No. 1, Panipat (Haryana) 2010(3) SCT 319, Hon'ble the Supreme Court has held that once the order of retrenchment has been held as illegal or nullity, the employee is entitled to continue in employment as if his service was not terminated. Infact, in the aforesaid case, Hon'ble the Supreme Court has directed the respondent/Management to pay the entire back wages to the employee.

14. In view of the settled position, I hold that the contesting respondents who had passed an order of retrenchment as against the petitioner/workman illegally is bound to pay back wages from the date of order of retrenchment till the date of his reinstatement in service as per the award of the Labour Court.

15. In view of the above, allowing the writ petition, respondents No. 2 and 3 are directed to pay back wages to the petitioner/workman from the date of order of retrenchment to the date when the petitioner was reinstated in service. The entire back wages for the aforesaid period shall be paid by CWP No. 12351 of 1991 -5- respondents No. 2 and 3 within a period of two months, failing which respondents No. 2 and 3 are bound to pay interest at the rate of 9% per annum from the date of reinstatement till the date of payment. November 30, 2010. sjks. (M. JEYAPAUL) JUDGE