NESTLE INDIA LIMITED; J S SAHOTA Vs. PRESIDING OFFICER, LABOUR COURT, BATHINDA AND ANOTHER; NESTLE INDIA LTD AND ANOTHER

JUDGEMENT

(1.) Against the award directing reinstatement and full back wages, the management came on a writ petition in C.W.P. No. 8275 of 2004. The workman had also independently filed C.W.P. No. 11991 of 2005 contending that if he had been in employment, he would have obtained promotions and detailing the status of persons, who had joined the service subsequently and how their respective career progressions had been, the workman sought for monetary benefits that he would have earned if promotions had been granted to him as his juniors were. Both the writ petitions arise out of same set of facts and therefore, with the consent of both parties, they are taken up together.

(2.) The only contention, which was urged before me by the learned Senior Counsel, Sh. M.L. Sarin is with regard to the issue of payment of back wages. According to him, even at the time when the proceedings were pending before the Labour Court, the workman had attained the age of superannuation and therefore, he could not have been reinstated. He would refer to several decisions of the Hon'ble Supreme Court that dealt with the issue that full back wages would not be granted merely because the workman was entitled to reinstatement. The Hon'ble Supreme Court noticed a paradigm shift to what the workman should prove in order that he is entitled to the payment of back wages. In this case, according to him, the workman had admitted in evidence that after he was terminated from service, he had not looked for employment elsewhere and it was contended that he was carrying on agricultural operations in his fields. He had admitted in his evidence of his ownership of 56 kanals of land and he had also stated that he was making an earning of Rs. 15,000/- to Rs. 16,000/- per year. Referring to a decision of the Hon'ble Supreme Court in North East Karnataka Road Transport Corporation v. M. Nagangouda, 2007 2 SCT 74, the learned Senior Counsel would submit that even income from agricultural operations must be taken as income earned in gainful employment. The Hon'ble Supreme Court said in paragraph 17 as follows :-

(3.) The Hon'ble Supreme Court had held that it was immaterial whether the income which the workman had been earning during the period of his non- employment was out of self-employment or a job done for a third party. The Hon'ble Supreme Court was actually dealing with the effect of income which the workman was earning by his operations in agricultural fields while considering the eligibility to back wages. The Hon'ble Supreme Court was dealing with the situation where the Labour Court had awarded 50% of salary in such a case which was up-turned by the High Court on a view that income from agriculture by self-employment cannot mean gainful employment. The view of the High Court was found fault with by the judgment referred to above.