JUDGMENT

G.S. Sandhawalia, J. - CM-1398-LPA-2018

Application for condonation of delay of 185 days in filing the appeal, is allowed, in view of the averments made in the application duly supported by affidavit. Delay of 185 days in filing the appeal is condoned.

CM stands disposed of.

LPA-513-2018 (O&M)

The present Letters Patent Appeal requires consideration of the judgment of the learned Single Judge passed in CWP No.23594 of 2013 Xen OP Divisional No. 1 and 2, Dadri, Distt. Bhiwani and & others v. Presiding Officer Industrial Tribunal-cum-Labor Court and another' decided on 31.07.2017. By virtue of the said order, the learned Single Judge modified the Award of the Labour Court dated 03.01.2014 (Annexure P-1) to the extent that instead of 50% back-wages along-with the relief of reinstatement, the benefit of back-wages was restricted to 40%. The amount of Rs.3 lakhs which had been deposited by the department in pursuance of the interim order dated 02.12.2014 when notice of motion was issued in the present appeal which has to carry the maximum rate of interest while staying the Award was to be returned to the department by issuing a demand draft.

2. The reasons which weighed with the learned Single Judge were that the appointment of the workman as Mali was on 01.01.1987 and his services were dispensed with in December, 2000. He had served a demand notice on 06.05.2003 (Annexure P-2) and, therefore, while noticing the pronouncement of law by the Apex Court in Bharat Sanchar Nigam Ltd. v. Bhurumal , (2014) 7 SCC 177 , it was held that no direct evidence for working for 15 years had been furnished by the workman and most of the documents were relatable only to two years. The delay in raising the demand notice of 3 years was accordingly taken into consideration by granting only 40% of the back-wages.

3. A perusal of the paper-book would go on to show that the claim of the workman was on the strength of the claim petition filed that he was appointed as Mali on 01.01.1987 by the respondent-Nigam at Pump House No.18, Balkara. Thereafter, he was transferred to Power House Charkhi Dadri and remained there till December, 2000. It was claimed that the post on which he was working was of permanent nature but he was treated as a daily wager and, thus, he had put in more than 240 days service till the date of termination. Neither any notice was issued to him nor any retrenchment compensation was paid to him. He had also alleged that he was told that his services were no longer required, whereas juniors had been retained.

4. The defence as such of the appellant-Nigam was that he had never worked for a single full day and was only a part time sweeper. He had worked in the Sub-Station which falls under the jurisdiction of Executive Engineer, Rewari and the said officer had not been impleaded as a party. The employment was for 89 days only and after the expiry of the same fresh approval and sanction was taken, which was for the same period. The policy of the Nigam dated 01.12.2000 provided that his services to be discontinued.

5. In response to the written statement, the respondent-workman had filed replication, wherein there was a denial to the fact that he was a sweeper but appointed as a part time Mali and his services were continued from 01.01.1987 to 31.12.2000 without any gap.

6. WW-2 R.M. Bhargav, Retired Sub-Station Engineer, Electricity Department had been examined to show that he was working @ Rs.775/- per month in the year 2000 and submitted that he was a part time sweeper. The Labour Court came to the conclusion t