1. The petitioner – Gujarat State Road Transport Corporation herein referred to as 'Corporation' by way of this petition under Article 226 of the Constitution of India, has challenged the legality and validity of the order dated 01.10.2001 passed by the Presiding Officer, Labour Court, Junagadh in Reference (LCJ) No.189 of 1999. The Labour Court by way of judgment and award impugned in the present petition was pleased to pass an order of reinstatement with back wages to the tune of 50% which is the subject matter of challenge before this Court.
2. It is to be noted that this Court (Coram : M.S.Shah, J [as he then was]), while admitting the matter was pleased to stay the execution and implementation of the impugned award, subject to condition that the petitioner Corporation reinstate the respondent workman within one month from 12.9.2002 i.e. the date on which the present petition came to be admitted by this Court as aforesaid.
3. Brief facts which can be carved out from the record of the petition are as under.
4. The respondent – workman was appointed as Driver (Badge No. 26844), who was posted at Una Depot, Amreli Division of the Corporation since 4.10.1996. It is the case of the respondent-workman that as he felt sick, he orally informed the Depot Manager and did not remain present for service from 7.9.1998 and therefore charge sheet came to be issued by the petitioner Corporation on 11.11.1998. In response to the said charge sheet, the petitioner gave his written reply dated 27.11.1998. Thereafter, the petitioner conducted the inquiry and ultimately the same culminated into issuance of Show Cause Notice to the respondent workman asking the respondent workman to show cause why he should not be dismissed from service. It appears that the said Show Cause Notice was also replied by the respondent workman vide his written reply dated 25.1.1999 and after considering the reply the petitioner Corporation vide order dated 22.3.1999 dismissed the respondent workman from service.
5. The respondent workman also filed Departmental Appeal on 5.4.1999 which was also dismissed by the petitioner Corporation. The workman being aggrieved by the said order of termination raised a dispute before the Competent Authority and ultimately the same was referred to the Labour Court, Junagadh which came to be registered as Reference (LCJ) No. 189 of 1999. The Labour Court, Junagadh after considering the submissions made by both the sides and on consideration of oral as well as documentary evidence produced on record, was pleased to allow the said Reference by judgment and award dated 1.10.2001 reinstating the respondent workman on its original post with 50% back wages. Being aggrieved by the said award the present petition is filed.
6. At the outset Mr. Rathod, learned Counsel for the respondent has stated at Bar which is not controverted by Mr. Dipen Desai, learned Counsel for the petitioner Corporation that the respondent workman has been reinstated with effect from 22.11.2002. Mr. Rathod further submitted that in fact, the petitioner Corporation has also given benefit of time scale to the respondent workman with effect from 17.4.2003 and at present the respondent is working as permanent workman with the petitioner Corporation.
7. Heard Mr. Dipen Desai, learned Counsel for the
8. Mr. Desai has taken this Court through the record of the petition as well as relevant documentary evidence which is produced on record and candidly submitted that, in fact, the interim order passed by this Court has already been implemented by the petitioner Corporation and as rightly pointed out by Mr. Rathod that the petitioner Corporation has also given benefit of time scale to the respondent workman way back from 17.4.2003. Mr. Desai, however, is not able to point out that there is error apparent on the face of the record in the impugned judgment and award as far as the reinstatement is concerned. On perusing the impugned judgment and award, it appears that the labour Court has considered the documentary evidence produced by both the sides. The respondent workman has been able to prove that because of illness he was absent from 7.9.1998 till 11.11.1998. The Labour Court has considered the documents at Exhibits 28, 29, 30, 31 & 32 and has rightly come to the conclusion that because of the illness the respondent workman could not attend the duty. The Labour Court has therefore correctly appreciated the evidence produced on record and has come to the conclusion that the absenteeism on the part of the respondent workman was not purposeful or such which would amount to misconduct. It is found that the respondent workman could not attend his duties because of his illness. On perusing the judgment and award it also transpires that the Labour Court has rightly come to the conclusion that in such a condition the order of dismissal is not only harsh but totally uncalled for. It also appears from the record that except this cause of absenteeism of the respondent workman, the respondent workman has not committed any alleged misconduct all throughout his service.
9. However, Mr. Desai has pointed out that as far as the impugned judgment and award is concerned, the Labour Court has committed an error apparent on the face of record for granting 50% back wages because there was no cogent and relevant material to show that the respondent workman was not gainfully employed. Mr. Desai has relied upon the judgment of the Hon'ble Apex Court in the case of General Manager, Haryana Roadways Vs. Rudhan Singh, reported in (2005) 5 SCC 591, and has pointed out that in the present case the respondent workman is not entitled to any amount towards back wages and that the Labour Court has mechanically awarded 50% back wages, and therefore, the petition at least deserves to be allowed as far as 50% back wages is concerned.
10. Per contra Mr. Rathod has supported the impugned judgment and award. However, Mr. Rathod has not been able to point out that on what basis the Labour Court has awarded 50% back wages. Mr. Rathod, however, pointed out as far as the order of dismissal is concerned, there is no error committed by the Labour Court and therefore, the order of reinstatement deserves to be confirmed by this Court by dismissing the petition.
11. Considering the submissions made by the learned Counsel appearing from both the sides and on perusing the impugned judgment and award as well as the documents produced on record of the petition, it transpires that the Labour Court has not committed any error in passing the judgment and award of reinstatement. The Labour Court after appreciating the evidence on record has rightly come to the conclusion that the respondent workman has been able to prove that he remained absent because of illness and the Labour Court has rightly concluded that the order of dismissal deserves to be quashed. However, considering the ratio laid down by the Apex Court in the case of General Manager, Haryana Roadways (supra), the Labour Court has committed an error apparent on the face of record in awarding 50% back wages. It would be appropriate to refer to the judgment of the Apex Court in the case of General Manager, Haryana Roadways (supra), wherein the Hon'ble Apex Court has observed thus :
1“0. In Saran Kumar Gaur and others vs. State of Uttar Pradesh and others [JT 1991 (3) SC 478], this Court observed that when work is not done remuneration is not to be paid and accordingly did not make any direction for award of past salary. In State of U.P. and Anr. vs. Atal Behari Shastri and anr. [JT 1992 (5) 523], a termination order passed on 15.7.1970 terminating the services of a Licence Inspector was finally quashed by the High Court in a writ petition on 27.11.1991 and a direction was issued to pay the entire back salary from the date of termination till the date of his attaining superannuation. This Court, in absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside the order of the High Court directing payment of entire back salary and substituted it by payment of a lumpsum amount of Rs.25,000/-. In Virender Kumar, General Manager, Northern Railways, New Delhi vs. Avinash Chandra Chadha and others [(1990) 3 SCC 472], there was a dispute regarding seniority and promotion to a higher post. This Court did not make any direction for payment of higher salary for the past period on the principle of n’o work no pay’as the respondents had actually not worked on the higher post to which they were entitled to be promoted. In Surjit Ghosh vs. Chairman and Managing Director, UCO Bank and others [(1995) 2 SCC 474], the appellant (Assistant Manager in the Bank) was dismissed from service on 28.5.1985, but his appeal was allowed by this Court on 6.2.1995 as his dismissal order was found to be suffering from an inherent defect. His claim for arrears of salary for the past period came to about Rs.20 lakhs but this Court observed that a huge amount cannot be paid to anyone for doing no work and accordingly directed that a compensation amount of Rs.50,000/- be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta vs. State of Bihar [(1996) 7 SCC 83], the appellants were employed as daily wage employees in Water and Land Management Institute of the Irrigation Department of Government of Bihar and they were working on the posts of steno-typists, typists, machine operators and peons, etc. This Court allowed the appeal of the workmen and directed reinstatement but specifically held that they would not be entitled to any past salary. These authorities show that an order for payment of back wages should not be passed in a mechanical manner but host of factors are to be taken into consideration before passing any order for award of back wages.”
12. Resultantly, the petition is partly allowed. The impugned judgment and award of the Labour Court in Reference (LCJ) No.189 of 1999 in so far as it directs reinstatement is upheld and the award regarding payment of back wages is set aside and the award of the Labour Court is modified to the aforesaid extent with no order as to costs.
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(R.M. Chhaya, J.) M.M.BHATT