1. The petitioner Gujarat State Road Transport Corporation ('GSRTC'), opponent in Reference (I.T.) No. 127 of 2005, in complaint (I.T.) No. 6 of 2011 (Old No. 12 of 2009); has approached this Court under Article 226/227 of the Constitution of India, challenging the order in award dated 12/8/2011 passed by the Industrial Tribunal, Bhavnagar, on the application filed by the workman under section 33 of the Industrial Disputes Act, 1947 (herein after referred to as 'I.D. Act' for short).
2. The facts in short leading to filing this petition deserve to be set out as under.
The workman/ respondent no.1 in this petition was constrained to file complaint being Complaint (IT) No. 6 of 2011 (old No. 12 of 2009) in Reference (IT) No. 127 of 2005 under section 33 of the I.D. Act, complaining that during pendency of reference, his services came to be terminated without following due procedure of law and without taking any approval from the Tribunal concerned. In the complaint filed by the workman, a defence was taken by the employer Corporation that the workman being not engaged as per the rules & regulations of the Corporation he did not deserve to be continued and pendency of reference would be of no avail to the workman. This defence has been rejected by the Tribunal and the Tribunal has allowed the application with 50% backwages and with all other benefits as the order terminating the workman was per say illegal as prior to terminating services of the workman, no request or approval was obtained as required under section 33 of the I.D. Act.
3. Learned advocate for the petitioner has invited this Court's attention to the factum with regard to awarding of backwages and submitted that the backwages to the tune of 50% ought not to have been awarded as the workman being a skilled workman could not have remained idle for the days for which his services were terminated and thereafter he was reinstated. The advocate for the petitioner could not however controvert the fact that, admittedly there was no application made before the Tribunal for seeking permission to terminate the services and services were terminated during pendency of the reference in question. Therefore there was clear breach of provision of Section 33 of the I.D. Act.
4. Learned advocate for the petitioner also could not indicate any defence that the workman in question was not governed by the reference which was pending in any manner.
5. Learned advocate for the workman contended that in light of judgment rendered in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vs. Ram Gopal Sharma and others, reported in (2002) 2 SCC 244, the impugned order cannot be said to be in any way illegal requiring any interference. Provision of section 33 makes it incumbent upon the employer to maintain status-quo qua service condition during pendency of the reference. In the instant case it is no where disputed that the reference was pending and in such a situation it was incumbent upon the petitioner / opponent to follow provision of section 33 of the I.D. Act. Non compliance of section 33 is writ large in the matter and in view of the matter cited viz. Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd (supra), this Court is of the considered view that the order impugned does not deserve to be interfered in any manner.
6. The submission submitted in respect of backwages also do not require any consideration as the quantum of backwages cannot be decided in a petition under Article 226 of the Constitution, when there is clear breach of provision of section 33 of the ID Act which is indicated to be a factor that has weighed with the Tribunal, yet the Tribunal has granted only 50% backwages. There are judgments to the effect to indicate that non-compliance of provision of section 33 of the I.D. Act would amount to workman being continued in service for the period of illegal termination, than the backwages is ordinarily a matter of course, unless & until it is proved that the workman had in fact been gainfully employed during period of termination. In the instant case there is no such pleading or establishment before the Tribunal concerned. Therefore, this Court, in my view cannot interfere with the order qua backwages also.
7. In totality, the petition being bereft of merits deserves rejection and is accordingly rejected. Rule discharged. Interim relief granted earlier stands vacated. However there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn