1. RULE. Mr. Mankad learned counsel waives service of rule on behalf of respondent no. 1 and Mr. Paritosh Calla learned counsel waives service of rule on behalf of respondent no. 2. With the consent of the parties, the matter is taken up for final hearing today itself.
2. By way of this petition, the petitioner has prayed to quash and set aside the judgment and award passed by the Labour Court, Vadodara in Reference (LCV) No.268/2003 dated 07.07.2011, whereby, the said reference was partly allowed and the petitioner has been directed to reinstate the respondent on his original post with continuity of service and 40% back wages.
3. The facts in brief are that the respondent was serving as a Operator in the petitionerCompany. It is the case of the respondent that his services were orally terminated on 20.12.2002 without giving any notice or notice pay or retrenchment compensation. Therefore, the respondent raised an industrial dispute, which, ultimately, culminated into a reference before the Court below. In the said Reference, the respondent workman filed the written statement denying all the allegations. The Labour Court, after considering the evidence on record, partly allowed the reference by passing the impugned award. Hence, this petition.
4. Heard learned counsel for the respective parties and perused the documents on record. On 14.02.2012, this Court passed the following order in this matter;
“1. Draft amendment is allowed.
2. Learned advocate Mr. V. K. Patel has submitted that the petitioner does not challenge the direction asking the petitioner employer to reinstate the respondent workman. Thus, the direction so far as the relief of reinstatement is concerned, is not under challenge.
3. Under the circumstances, the petitioner shall immediately reinstate the respondent. For the said purpose, the petitioner shall forthwith address a written communication to the respondent asking him to report for duty and inform him that in compliance of the award he has been reinstated. The said communication shall mention the date, place and time for reporting the duty and name of the officer to whom the respondent shall report for resuming his duty.
4. Learned advocate Mr. Patel has submitted that the petitioner is restricting the challenge against the award so far as the back wages is concerned, therefore, present petition and the challenge against the award is restricted qua back wages and in absence of any challenge against direction to reinstate the respondent, the award to that extent remains and stands confirmed. The petitioner shall reinstate the respondent on or before 24/02/2012.
5. So far as direction to pay 40% back wages is concerned, the office is directed to issue notice to the respondent making it returnable on 12/03/2012. Until then the said direction i.e. the direction to pay 40% back wages shall remain stayed.”
5. Pursuant to the passing of the above order, the respondent has been reinstated in service. Therefore, the only question that now requires consideration is with regard to grant of 40% back wages.
6. In the impugned award, the Court below has not given any cogent reasons while awarding 40% back wages. In the case of Ram Ashrey Singh v. Ram Bux Singh, (2003) II L.L.J. Pg.176, the Apex Court has held that a workman has no automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case. Similar principle has been laid down by the Apex Court in the case of General Manager, Haryana Roadways v. Rudhan Singh, J.T. 2005 (6) S.C.,pg. 137, [2005 / (5) S.C.C.,pg.591], wherein, it has been held that an order for payment of back wages should not be passed in a mechanical manner but, a host of factors are to be taken into consideration before passing any such order.
6.1. It another decision in the case of A.P. State Road Transport & Ors., v. Abdul Kareem, (2005) 6 S.C.C. pg.36, the Apex Court has held that a workman is not entitled to any consequential relief on reinstatement as a matter of course unless specifically directed by forum granting reinstatement.
7. Looking to the facts of the case and the principle laid down by the Apex Court in the above decisions, I am of the opinion that the respondentworkman cannot be said to be entitled for any back wages. Hence, the impugned award granting back wages deserves to be quashed and set aside.
8. For the foregoing reasons, the petition is partly allowed. The impugned award passed by the Labour Court is modified to the extent that the direction regarding grant of reinstatement on the original post with continuity of service and consequential benefits to the respondentworkman is confirmed, whereas, the direction regarding back wages is quashed and set aside. The petitioner shall pay the wages as compensation for the period from the date of publication of the award till reinstatement within a period of 30 days from the date of receipt of writ of this order. With the above modification, the petition stands disposed of. Rule is made absolute to the above extent with no order as to costs.
[K.S. JHAVERI, J.] /phalguni/