1. By way of this petition under Article 226 of the Constitution of India, petitioner-Gujarat State Road Transport Corporation (hereinafter referred to as the 'Corporation' for the sake of brevity), has inter alia challenged judgment and award dated 31.08.2001 passed by the learned Presiding Officer, Labour Court, Himmatnagar in Reference (S.C.H.) No.200 of 1996 whereby, the learned Labour Court was pleased to allow the reference and pass award of reinstatement with continuity in service with 50% back wages.
2. The facts that emerged from the record of the petition are as under.
2.1.
The respondent-workman was working with the petitioner-Corporation as watchman on part-time basis for a period of 8 years. It is the case of the petitioner-Corporation that the respondent-workman was appointed only on part-time basis for four hours to look after the goods of the petitioner-Corporation where, the construction work was going on. It is the case of the petitioner-Corporation that after the construction work was over, as the services of the respondent-workman were not necessary, he was discharged from the service. It is the case of the petitioner-Corporation that as the respondent-workman was only a part-time daily wager, it was not necessary for the petitioner-Corporation to issue notice or to give any notice pay to the respondent-workman. It appears that the said order of dismissal came to be challenged by way of raising dispute, which came to be referred to the learned Labour Court and was numbered as Reference (S.C.H.) No.200 of 1996. The learned Labour Court, after hearing the parties and after appreciating oral as well as documentary evidence, was pleased to pass the impugned judgment and award whereby, the respondent-workman is ordered to be reinstated with continuity of service and has also awarded 50% back wages.
3. Mr.Dipen Desai, learned counsel appearing for the petitioner-Corporation has taken this Court through the judgment and award impugned in the present petition as well as the averments raised in the petition and other documents which are produced which were part of the record before the learned Labour Court in the said Reference. Mr.Dipen Desai, learned counsel submitted that the respondent-workman was not a regular workman of the petitioner-Corporation and, in fact, was appointed for special work and, therefore, after the said work of construction was over, the services of the respondent-workman were discontinued. Mr.Desai, learned counsel submitted that considering the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947 (for short the 'Act'), as the respondent-workman was appointed for a specific fixed period for special work, provisions of Section 25-F of the Act are not required to be followed by the petitioner-Corporation. Mr.Desai, learned counsel submitted that this vital aspect has been overlooked by the learned Labour Court and hence, the learned Labour Court has committed apparent error on the face of the record. Mr.Desai, learned counsel further submitted that in mechanical manner, the learned Labour Court has awarded 50% back wages. Therefore, Mr.Desai, learned counsel submitted that the petition deserves to be allowed.
4. Per contra, Mr.M.H. Rathod, learned counsel appearing for the respondent-workman has assailed the judgment and award impugned in the present petition. Mr.Rathod, learned counsel submitted that the learned Labour Court has, after consideration of the evidence on record and on correct appreciation of the same, passed the impugned award and has committed no error which requires interference of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. Mr.Rathod, learned counsel further submitted that, in fact, in similarly situated case, this Court (Coram: P.B. Majmudar, J., as he then was) vide order dated 18.06.2002 passed in Special Civil Application No.4765 of 2002, has reinstated the workman with 50% back wages. Mr.Rathod, learned counsel also submitted that in another similarly situated case, this Court (Coram: K.S. Jhaveri, J.) vide order dated 27.12.2005 passed in Special Civil Application No.2977 of 2002, has confirmed the reinstatement but however, quashed and set aside the award qua the back wages. Mr.Rathod, learned counsel, therefore, submitted that the petition deserves to be dismissed.
5. On consideration of the rival submissions made by both the parties and on perusing the impugned judgment and award as well as the documents on record, the learned Labour Court held that while discharging the respondent-workman from the services, the petitioner-Corporation was required to follow the procedure as contemplated under the relevant provisions of the Industrial Disputes Act. It is an admitted position that the petitioner-Corporation has committed breach of Section 25-F of the Act. The learned Labour Court has rightly rejected the contention of the petitioner-Corporation regarding Section 2(oo)(bb) of the Act and there is no error, much less an error, apparent on the face of the record as far as the finding of the reinstatement is concerned. However, on considering the reasons for which the back wages is granted, the contention raised by Mr.Desai, learned counsel for the petitioner-Corporation is correct. It transpires that the learned Labour Court has mechanically awarded 50% back wages without there being any evidence on record. It transpires that, on the contrary, the respondent-workman has come out with the case before the learned Labour Court that he was earning Rs.1200/- per month. Considering the ratio laid-down by the Hon'ble Apex Court in the case of General Manager, Haryana Roadways V/s. Rudhan Singh reported in (2005)5 SCC 591 wherein, the Hon'ble Apex Court has held that the 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 such order, it would be appropriate to quote paras 10 and 12 of the said judgment which read as under:-
"10.
In Saran Kumar Gaur v. State of U.P. 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. v. Atal Behari Shastri 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 the 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 v. Avinash Chandra Chadha 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 '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 MD, UCO Bank 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 v. State of Bihar the appellants were employed as daily-wage employees in Water and Land Management Institute of the Irrigation Department of the Government of Bihar and they were working on the posts of stenotypists, 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 a host of factors are to be taken into consideration before passing any order for award of 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 but the award regarding payment of 50% back wages is set aside."
6. Considering the ratio laid-down by the Hon'ble Apex Court, as the learned Labour Court has committed error apparent on the face of the record in awarding 50% back wages, resultantly, the petition is partly allowed. The award of the learned Labour Court of reinstatement with continuity of service is hereby confirmed. However, the award in relation to the 50% back wages is hereby quashed and set aside. The petitioner-Corporation is hereby directed to reinstate the respondent-workman within a period of 8 weeks from today.
7. The award of the learned Labour Court stands modified only to the aforesaid extent. Rule is made absolute accordingly.
(R.M.CHHAYA, J.) Hitesh Top