1. Though served none appears for the respondent workman.
2. By way of filing this petition under Article 226/227 of the Constitution of India, the petitioner is challenging the award dated 30.09.2006 passed by the Labour Court, Himmatnagar in Reference (LCH) No. 134 of 2002 by virtue of which the petitioner was ordered to reinstate the respondent workman with continuity of service and 50% backwages.
3. According to the corporation, the respondent was an employee with the petitioner as a driver. On 13.02.2000, due to the reckless driving of the respondent in a drunken state, the passengers started creating ruckus and therefore the bus had to be halted near Sarkhej. An FIR was lodged at Sarkhej police station. In respect of the said charge, departmental inquiry was held against the driver while following the principles of natural justice and punishment of reduction to basic pay scale for five years was imposed.
3.1 Considering the punishment imposed by the corporation as being on lower side, the reviewing authority enhanced the punishment and imposed punishment of dismissal from service. The respondent workman challenged the same by way of filing Reference before the Labour Court. The Labour Court after hearing the parties passed the aforesaid award.
4. Mr. Rawal, learned advocate appearing for the petitioner submitted that the Labour Court has wrongly found that the competent authority has no power to review the order of punishment and to enhance the quantum of punishment. He submitted that looking to the gravity of misconduct the Labour Court ought to have imposed some punishment on the respondent workman so as to have a deterrent effect. He submitted that the backwages is required to be quashed and set aside.
5. I have perused the review order as well as the award passed by the Labour Court. The reviewing authority has come to the conclusion that the punishment imposed by the competent authority for the misconduct is inadequate or disproportionate. The Tribunal has gone into the details of the case and has come to the conclusion that the reviewing authority has no power to review the punishment imposed by the competent authority. However, considering the misconduct and gravity of offence in driving while being in a drunken state and putting the life of many passengers in danger, some punishment ought to have been imposed on the respondent workman so as to have a deterrent effect on the employee and similarly situated people. Accordingly, punishment of stoppage of one increment with future effect shall be just and proper.
6. As far as the award qua backwages is concerned, it appears that the Labour Court has granted backwages without giving any cogent and valid reasons except in the operative order. Backwages were granted merely on assumption without any concrete finding. Moreover, the law on the subject is well settled. In the case of Ram Ashrey Singh Vs. Ram Bux Singh, reported in (2003) II LLJ 176, it is held that the workman had no automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with facts and circumstances of each case. In the case of General Manager, Haryana Roadways Vs. Rudhan Singh, reported in JT 2005(6) SC 137 (=2005 (5) SCC 591), after referring to various decisions on the said subject, the Apex Court held that order for payment of back wages should not be passed in mechanical manner, but a host of factors are to be taken into consideration before passing any such order. Paragraphs 10, 11 and 12 read as under:
“10. In Smt. Saran Kumar Gaur and others V. State of Utter Pradesh and others, 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. V. Atal Behari Shastri and Anr, 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 lump-sum amount of Rs.25,000/-. In Virender Kumar, General Manager, Northern Railways, New Delhi V. Avinash Chandra Chadha and others, 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 “no 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 V. Chairman and Managing Director, United Commercial Bank and others, 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 lacs 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.50000/- be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta V. State of Bihar, 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-typist, 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.
11. In the case in hand the respondent had worked for a very short period with appellant, which was less than one year. Even during this period there were breaks in service and he had been given short term appointments on daily wage basis in different capacities. The respondent is not a technically trained person, but was working on a class IV post. According to the finding of the Industrial Tribunal-cum-Labour Court plenty of work of the same nature, which the respondent was doing, was available in the District of Rohtak. In such circumstances we are of the opinion that the respondent is not entitled to payment of any back wages.
12. The appeal is accordingly partly allowed and the award of the Industrial Tribunal-cum-Labour Court insofar as it directs reinstatement with continuity of service is upheld by the award regarding payment of 50% back wages is set aside.”
6.1 Similar principle has been laid down by the Apex Court in the case of A.P. State Road Transport Corporation and ors v. Abdul Kareem reported in (2005) 6 S.C.C. pg.36; in U.P.S.R.T.C. v. Mahendra Nath Tiwari & Anr., reported in 2005 AIR S.C.W. pg.6042 and in the case of U. P. State Brassware Corpn. Ltd., & Anr., v. Udai Narain Pandey reported in 2005 AIR S.C.W. pg.6014. Hence, I am of opinion that the respondent cannot be said to be entitled for back wages. In view of the same order regarding back wages is required to be quashed and set aside.
7. In the premises aforesaid, appeal is allowed. Punishment of stoppage of one increment with future effect shall be imposed upon the employee. The award of the Labour Court is quashed and set aside qua backwages. The award of the Labour Court is modified accordingly. Rest of the award shall remain the same. The respondent shall be reinstated in service with continuity of service within a period of one month from today. Accordingly, the legal dues permissible and admissible to the respondent shall be paid by the petitioner within a period of six months from today. Rule is made absolute to the aforesaid extent. Direct service is permitted to both the sides.
(K.S.JHAVERI, J.) divya