High Court of Punjab and Haryana, Chandigarh
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The Patiala Coop. Sugar Mills Limited, R v. The Presiding Officer, Labour Court, Pat - CWP-5502-1988  RD-P&H 7067 (12 September 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P. No.5502 of 1988
DATE OF DECISION: 20.9.2006
The Patiala Coop. Sugar Mills Limited, Rakhra ..PETITIONER
The Presiding Officer, Labour Court, Patiala and another.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. Rahul Sharma, Advocate
for the petitioner.
Mr. Parminder Singh, Advocate for
Mr. Vikas Singh, Advocate
for the respondents.
ARVIND KUMAR, J.
Respondent No.2-workman was inducted into service by the petitioner-Society on 12.7.1986 for a period of 89 days. He was again given extension for a period of 89 days we.f. 20.10.1986. Thereafter, he was further given extension for 89 days. After that his services were not extended which gave rise to an industrial dispute. The dispute was referred to the Labour Court for adjudication. The petitioner-society was proceeded ex-parte by the Labour Court on 3.3.1988. Respondent No.2 adduced the ex-parte evidence and on consideration thereof, the Labour Court vide the award dated 7.3.1988 ordered re-instatement of the workman with continuity of service and full back wages. Hence the ex-parte award has been challenged by the petitioner-Society through the instant petition.
On 31.10.1988 a Single Judge of this Court stayed the recovery of back wages, but the request of the petitioner to stay re-instatement was C.W.P. No.5502 of 1988 2
I have heard learned counsel for the parties and have gone through the record carefully.
During the course of arguments, learned counsel for the petitioner has conceded that respondent No.1 has been taken back in service. He, thus confined his arguments only with regard to the back wages. He has contended that the Labour Court has erred in granting full back wages to respondent No.2 without there being any iota of evidence to prove that respondent No.2 was not gainfully employed or remained idle during the interregnum.
On the other hand, the learned counsel for respondent No.2 has argued that once the termination of the workman had been held illegal, he has been rightly awarded back wages, as a natural corollary.
The arguments have been scanned. It is now settled preposition having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto that instead of employer, the plea is required to be raised by the workman that he was not gainfully employed during termination period. In other words, the initial burden is on the workman to show that he was not gainfully employed. However, in the instant case, respondent No.2-workman in his ex-parte evidence, while appearing before the Labour Court has stated in a very casual manner that he had searched for work but would not find the same. This would not suffice to prove that he was not gainfully employed or remained idle.
In the case of G.M. Haryana Roadways vs. Rudhan Singh 2005 (5) SCC 591, although the termination of service of workman was held to have been made in violation of Section 25-F of the Act, a three C.W.P. No.5502 of 1988 3
Judge Bench of Hon'ble Supreme Court, considering the length of service of a workman which was less than a year and having regard to his educational qualification etc. denied back wages. In the instant case, the Labour Court has categorically held that the workman served the department for a shorter period of less than one year when his services were terminated. He worked merely as a Clerk. There is nothing on record which is suggestive of fact that the petitioner was technically trained. Therefore, applying the norms laid down by Hon'ble the Apex Court in Rudhan Singh's case (supra) in the present case, I am of the considered view that the Labour Court has erred in granting full back wages to the respondent No.2-workman.
In view of the discussion above, the instant petition is partly allowed. The impugned award of the Labour Court is set aside to the extent it granted full back wages to the respondent. The claim of respondent No.2- workman to that extend stands dismissed. The parties are left to bear their own costs.
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