In cases of wrongful termination, reinstatement with back wages is the normal rule unless the employer proves the employee was gainfully employed during the termination period.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with award dated 2.1.2013 (Annexure P-1), passed by the learned Industrial Tribunal cum Labour Court, Shimla, Himachal Pradesh, in reference No. 12 of 2011, titled Amit Kumar v. Executive Engineer and Anr, in as much as, petitioner herein came to be denied back wages, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:

“(a) to issue a writ of certiorari or direction in the nature thereof, quashing the impugned award passed by the Ld. Industrial Tribunal below on 02/01/2013 being Annexure P-1 of the writ petition to the extent it denies back wages to the petitioner, as unconstitutional and illegal and contrary to the law;

(b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent department to pay full backwages to the petitioner for the period the petitioner remained illegally retrenched alongwith interest thereon @18% pa from due date till payment of the same;

(c) to issue an appropriate writ, order or direction in nature thereof to give full justice to the petitioners in the circumstances of the case and may pass such further writ, order or orders as this Hon’ble Court may deem fit, proper, just and expedient in the circumstances of the case.”

2. Precisely the facts of the case as emerge from the record are that petitioner was engaged as daily wage beldar by the respondents in the month of February 1998 in IPH (Mechanical) Sub Division Gumma, District Shimla, Himachal Pradesh. However, on 30.11.1998, his services were disengaged by the department without assigning any reasons or serving any notice. On 27.11.1999, petitioner filed OA No. 3369 of 1999, titled Amit Kumar v. State of Himachal Pradesh before the erstwhile HP Administrative Tribunal, which came to be dismissed on 16.11.2004 for want of jurisdiction. On 3.12.2004, petitioner raised demand notice and thereafter conciliation proceedings failed before the Labour Officer cum Conciliation Officer, as a result thereof, appropriate government while exercising power under Section 10 (2) of the Industrial Disputes Act, 1947, made following reference:

“Whether verbal termination of the services of Shri Amit Kumar S/o Shri Mathu Ram daily wage workman by the Executive Engineer I&PH Division No.II, Shimla-3, w.e.f. 1.12.1998 without serving notice and without complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, to what back wages, service benefits and relief the above named workman is entitled to?”

3. Petitioner challenged the termination on the ground that his services were illegally terminated in violation of provisions contained under the Act and after his termination, his juniors were retained and new workmen were engaged and as such, his termination be set-aside with the direction to respondents to reengage him with all consequential benefits.

4. Respondents while refuting the aforesaid claim put forth by the petitioner though admitted factum with regard to petitioner’s engagement in the department in the year 1998, but claimed that he was engaged for a specific work of cleaning of water tanks. Respondents claimed that on the conclusion of aforesaid work, services of the petitioner were not required. Respondents also set up a case that in the year 1998, the petitioner only worked for 136 days and as such, otherwise, he was not required to be served with notice prior to his termination. Respondents while admitting that one workman namely