1. The short facts of the case are that the respondent was working with the petitioner as workman, doing the work of diamond polishing. As per the respondent, his service came to be orally terminated by the petitioner from 15.10.1998, whereas as per the petitioner, the respondent workman abandoned the work. Thereafter, the dispute was raised by the respondent under the Industrial Disputes Act (hereinafter referred to as 'the Act'). The said dispute was referred to the Labour Court for adjudication being Reference (LCS) No.11 of 1999. The Reference Court, at the conclusion of the reference, passed the award for reinstatement with 50% backwages. It is under these circumstances, the present petition before this Court.
2. I have heard Mr.Gandhi, learned Counsel with Mr.Joshi for the petitioner and Mr.Moshti, learned Counsel for the respondent.
3. At the outset, it may be recorded that the petitioner did declare at the first instance when this Court considered the matter on 13.8.2004 that the petitioner is willing to reinstate the respondent workman if he reports for duty and, therefore, having recorded the said fact, this Court on 13.8.2004, while admitting the petition, granted stay against backwages only and it was further observed that if the respondent workman reports for duty, it was directed that the petitioner shall reinstate him forthwith. The fact remains that thereafter the reinstatement is not effected, inasmuch as, as per the petitioner, they were and they are ready to reinstate the respondent workman, whereas it is the case of the respondent that he was not permitted to join duty even prior to the dispute raised before the Labour Court and thereafter. It was submitted on behalf of the respondent that he is ready to be reinstated in service.
4. Under these circumstances, it appears that since the aspect of reinstatement is essentially not in dispute, inasmuch as even if the award of the Labour Court for reinstatement stands, the petitioner has no objection for reinstatement of the respondent workman. Therefore, it may not be required for this Court to examine as to whether the reinstatement ordered by the Labour Court as per the impugned award deserves to be interfered with or not. Of course, the aspect of termination or abandonment in service shall remain open as not required to be decided.
5. The aforesaid leads me to examine the only question as to whether the awarding of backwages of 50% was by way of proper exercise of discretion by the Labour Court or not.
6. The learned Counsel for the petitioner submitted that the Labour Court in the impugned award at paragraph 12 has recorded the fact that after 3.11.1999, though offer was made by the petitioner to the respondent to join the service, no action was taken by the respondent workman to move the Court for proper implementation or otherwise, nor he has joined the service and after recording the aforesaid factum, Labour Court has directed for payment of backwages of 50% without recording any further reasons on the said aspect.
7. Whereas Mr.Koshti, learned Counsel for the respondent submitted that the Labour Court has discretion to award backwages and the discretion has been properly exercised in the facts and circumstances of the case and, therefore, this Court may not interfere with the awarding of 50% of backwages by the Labour Court.
8. It is true that the Labour Court has discretion to award backwages, but such discretion is to be exercised on the basis of sound judicial principles and also on equity and good conscience. Had it been a case, where no offer was made by the employer to reinstate the workman, it might stand on a different footing and different consideration. But the employer has shown volition to reinstate the workman. Therefore, it is for the workman to join the service. In the event the declaration made for the reinstatement was not complied with or was sham or bogus, it would be expected for the workman to move the Court concerned for appropriate directions for ensuring that the declaration made for reinstatement is complied with. If the workman has not undertaken any exercise in this regard, it could be said that the workman was not serious about getting the benefit of reinstatement or reemployment in service, pending the adjudication by the Labour Court on the aspects of termination or otherwise.
9. If the facts of the present case are considered, the date of termination is 15.10.1998. There are disputes amongst both the parties inasmuch as, as per the petitioner, the respondent workman abandoned the work, whereas as per the respondent, he wanted to join the service, but he was not permitted to join the service and the watchman did not allow him to enter the factory premises.
10. Be that as it may, but there is no dispute on the aspect that in written statement dated 3.11.1999 the petitioner did declare for willingness on their part to reinstate the respondent workman and thereafter, as observed above, no action is taken by the respondent workman to be reinstated in service. Therefore, it can be said that after 3.11.1999, the facts and circumstances would not warrant awarding of backwages to the workman, since from the date of award, no action is taken in this regard. Even if it is considered that on 15.10.1998 the termination was made instead of abandonment then also at the most, it can be said that until the written statement was filed and declaration was so made by the petitioner before the Labour Court on 3.11.1999, the workman at the most may be entitled to backwages, but not after 3.11.1999 and such period approximately would come to one year.
11. The award has been passed on 4.4.2005 i.e. roughly after 5 ½ years from the date of so- called termination and/or abandonment. Under these circumstances, appropriate backwages even if was to be considered and was to be awarded, it would be 20% and not 50% as awarded by the Labour Court. The aforesaid aspects, in my view, was not considered by the Labour Court and the Labour Court by awarding 50% backwages has committed error apparent on the face of record. Hence, the award passed by the Labour Court for awarding backwages exceeding 20% deserves to be quashed and set aside.
12. The another peculiar facts and circumstances, which have emerged in the present case, are that as per the petitioner, they are ready to reinstate the workman, but the workman was not interested and he had abandoned the work. As per the submission made by the learned Counsel for the petitioner, the respondent workman is already engaged in the other company, whereas Mr.Koshti, learned Counsel for the respondent submitted that the said allegation is not correct and the respondent workman is ready and willing to be reinstated in service. It is hardly required to be stated that if the respondent workman is not interested to work by way of reinstatement and only interested in claiming backwages, such demand cannot be countenanced, more particularly when, as per the employer, there was abandonment of the work.
13. Under these circumstances, it appears that before appropriate payment is made of the backwages, it would be required for the workman to first accept reinstatement in service and to work for a reasonable time of about six months and thereafter to get backwages.
14. In view of the aforesaid observations and discussion, the judgement and award passed by the Labour Court for reinstatement in service of the respondent workman is not interfered with, however, on the aspect of backwages, the award shall stand modified to the effect that there shall be 20% backwages and not 50% backwages as awarded by the Labour Court. It is further directed that on 3.12.2012 the respondent workman shall join the service and the petitioner shall permit him to join the service on 3.12.2012 and after the respondent workman works for a period of six months, in the salary of seventh month, the backwages shall be paid by the petitioner to respondent workman. It is further observed that if the respondent workman moves appropriate application before the Government Labour Officer, Surat for witnessing the reinstatement in service in order to avoid further dispute, the Government Labour Officer, either himself or depute a responsible officer at the time of joining of service by the respondent at 11 O'clock on 3.12.2012.
15. The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.
(Jayant Patel, J.) vinod