Hari Palace Vs. Labour Court and anr. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - varying views had been expressed as to where precisely the onus lay with regard to the claim to back wages and also with regard to striking of the issues or the necessary point for determination thereof by the labour court itself.s.s. sandhawalia, c. j.1. (for himself and on behalf of r.n. mittal, j.).--what criteria should govern the grant of full back wages to a workman under the industrial law, when the termination of his services is held invalid by the labour court and the relief for reinstatement is granted to him is the sole, though significant, question which had necessitated the admission of these two connected writ petitions (c.w.p. no. 3521 of 1977, hari palace, ambala city v. presiding officer, labour court, etc. and c.w. p. no. 4414 of 1978, dharam paul chadha v. the presiding officer, labour court, etc.), for a hearing before a full bench.2. at the very outset it deserves highlighting that the matter is so squarely covered by a recent judgment of the final court that it would be patently wasteful to elaborate the issue either with regard to the principle or to precedent. therefore, a brief reference to the averments in c.w. p. no. 3521 of 1977, hari palace v. presiding officer, etc. would suffice to give the necessary background giving rise to the legal issue aforesaid.3. the petitioner firm claims that their employee-respondent no. 2, shri walaiti ram, had on his own accord resigned from his job, which was duly accepted by it. however, about two weeks thereafter respondent no. 2, is alleged to have demanded reinstatement on the plea that his services were illegally terminated on 18th october, 1975. an industrial dispute was raised, which on a reference to the labour court was decided in favour of the respondent-workman. it was held by the labour court vide its order dated 7th april, 1977 that the alleged resignation of the workman was not a genuine document and the termination of his services was unjustified. it accordingly allowed to the workman the relief of reinstatement with effect from 18th october, 1975, with continuity of service and also granted full back wages from the said date.4. mr. n.k. sodhi, appearing for the petitioner very fairly concedes that the sole point that calls for determination in the present case is whether the grant of full back wages to the respondent-workman, without his having made a specific claim therefore or led sufficient evidence in support thereof, is sustainable in law. it was pointed out that no specific issue was framed on this point by the labour court. basically reliance of the learned counsel was on a division bench judgment of the bombay high court reported in sadanand patanakar v. new prabhat mills no. 2. (1975) lab. i.c. 475 bom. counsel further argued that in the said high court a view consistent with the aforesaid judgment has always been taken.5. there is no gainsaying the fact that there has been some divergence of opinion in the various high courts on the point earlier. varying views had been expressed as to where precisely the onus lay with regard to the claim to back wages and also with regard to striking of the issues or the necessary point for determination thereof by the labour court itself. within this court a bench in daljeet and co. private ltd. rupar v. the state of punjab a.i.r 1964 punj. 313, has held that where the dismissed employee is reinstated with continuity of service, the normal relief would be the the payment of full wages from the date of dismissal and it is for the employer to raise this matter and prove that the employee had been earning wages for the whole or any part of the period in question. the aforesaid view has been consistently followed in this court and reaffirmed in harbans singh v. the assistant labour commissioner (1976) 78 punj. l.r 221. the allahabad high court was inclined to take a similar view in postal seals industrial co-operative society ltd., v. labour court, lucknow 1971-i l.l.j. 327 and of the same tenor is judgment of the gujarat high court in dharl gram panchayat v. safai kamdar mandal 1971-i l.l.j. 508.6. however, all controversy now seems to have been set at rest by their lordships of the supreme court in hindustan tin works pvt. ltd. v. the employees of hindustan tin works pvt. ltd. : (1978)iillj474sc , wherein the appeal by special leave was expressly limited to the question of grant of back wages. it has been held therein in no uncertain terms:ordinarily, therefore, a workman whose service has been illegallly terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. that is the normal rule. any other view would be a premium on the unwarranted litigative activity of the employer.and again:full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.the aforesaid view has then been reiterated by their lordships in g.t. lad. v. chemicals and fibres india ltd. 1979-i l.l.j. 257 : (1978) 38 f.l.r. 95, (1979) lab.i.c. 290 s.c. 7. in view of the aforesaid enunciation of the law it is plain that the matter is now concluded against the petitioner in c.w.p. no. 3521 of 1977. the writ petition is accordingly dismissed, but the parties are left to bear their own costs.8. the only additional point raised in c.w.p. no. 4414 of 1979 was that the labour court had misdirected itself and misappreciated the evidence in coming to the finding that the respondent-workman was entitled to reinstatement. we have closely perused the order of the presiding officer wherein he has adverted to all the relevant evidence to come to a considered finding that the management had abruptly terminated the services of the workman and in fact he never abandoned his post by wilful absence from duty as alleged by the management. even otherwise it is patent that this finding in the present case appears to be one of the fact arrived at on the basis of evidence adduced. it is not the province of the writ court to easily disturb the finding of fact arrived at by the labour court on the basis of evidence. this writ petition also is, therefore, without merit and is dismissed leaving the parties to bear their own expenses.bhopinder singh dhillon, j.9. i agree.