Point of Law: Workman - Order of Discharge or Dismissal - Section 11-A of the Act is reproduced as Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its awards, set aside the order of discharge.

ORDER :

By way of instant petition filed under Article 226 of the Constitution of India, challenge has been laid to award dated 8.05.2018 passed by the Industrial Tribunal-cum-Labour Court, Shimla, District Shimla, H.P., (in short “the Tribunal”) in Reference No.18 of 2011, titled as Raghuvir Singh vs. M/s Biogenetic Drugs Pvt. Ltd, whereby learned Tribunal below though held petitioner herein entitled for reinstatement alongwith seniority and continuity in service, but denied the back wages.

2. Precisely, the facts of the case, as emerge from the record are that the petitioner was engaged by the respondent-company on 13.09.2005 and he continued to work uninterruptedly till 15.07.2010 when his services were terminated without assigning any reason and without complying with the mandatory provisions of the Industrial Disputes Act,1947 ( for short Act). On 26.08.2009, the petitioner alongwith other workers though tried to enter the factory premises, but he was stopped by the Security Officer on the ground that suspension order already stands passed against him. Ultimately, matter came to be reported to the Labour Officer, Baddi, who made inspection and summoned the respondent to his office for conciliation on 27.08.2009. On 28.09.2009 with the intervention of Labour Inspector all other workers except the suspended workers including the petitioner were allowed by the respondent-company to work. On 5.09.2009, the petitioner received a charge sheet from the respondent, which was duly replied by him, but respondent after having conducted inquiry, served show cause notice upon the petitioner that why disciplinary action be not taken against him for instigating his fellow employees to go on the strike. On the basis of report submitted by the inquiry officer, respondent-management terminated the services of the petitioner, who thereafter approached appropriate Government for making reference under Section 10 of the Act. Having taken note of the demand notice made by the petitioner, appropriate Government exercising power under Section 10 of the Act made following reference to the Industrial Tribunal-cum-Labour Court, Shimla:-

“Whether the dismissal of the services of Shri Raghuvir Singh S/o Shri Ram Dass, helper, by the Managing Director, M/s Biogenetic Drugs Private Limited, Village Jharmazri, Baddi, District Solan, H.P. w.e.f.15.7.2010 after servicing charge sheet and after holding enquiry is legal and justified? If not, to what back wages, service benefits and relief the above named operator is entitled to from the concerned management?.”

3. Learned Tribunal below having taken note of the pleadings as well as evidence led on record by the respective parties though held petitioner entitled for reinstatement in service with seniority and continuity but denied him back wages and as such, petitioner has approached this Court in the instant proceedings, praying therein to set-aside the impugned award inasmuch as he has been denied the back wages.

4. Despite sufficient opportunities, no reply to the petition has been filed. However, it has been fairly admitted by learned counsel for the respondent that award impugned in the instant proceedings has been not laid challenge by the respondent, as a consequence of which, same has attained finality qua it. Ms. Anubhuti Sharma, learned counsel representing the respondent, while justifying the award passed by learned Tribunal below inasmuch as back wages came to be denied to the petitioner, argued that since petitioner failed to prove that during period of termination he was not gainfully employed somewhere else, there was no occasion, if any, for the Tribunal below to grant him back wages. She further submitted that otherwise also after passing of the award, whereby order of reinstatement was passed, petitioner never joined back and as such, is not entitled to any back wages. She further submitted that financial condition of the respondent-company is not very good and as such, prayer made on behalf of