1.0 Though served none appears for the respondent.
2.0 This petition is directed against the judgement and award dated 12.09.2003 passed by the learned Presiding Officer, Labour Court, Junagadh in Reference ( LCJ) No. 1546 of 1990 whereby the Labour Court has directed the petitioner University to reinstate the respondent workman in service with continuity of service and with 20% backwages.
2.0 The brief facts of the case are that the respondent was engaged in the year 1989 as an ad hoc daily rated field labour at Rs. 11/ per day for some miscellaneous field work. On 03.02.1989 she herself abandoned the work. The respondent therefore raised an industrial dispute before the Conciliation Officer. The dispute was numbered as Reference ( LCJ) No. 1506 of 1990 and was pending. A letter was sent to the Assistant Labour Commissioner and the respondent to report for work. The respondent did not report for work. On 04.05.1989, another letter was sent to the respondent asking her to report for work but she did not report for work. On 09.11.1989, the respondent further raised dispute being Reference ( LCJ) No. 1546 of 1990. On 18.07.2001, Reference ( LCJ) No. 1506 of 1990 filed by the respondent was dismissed for nonprosecution. On 26.09.2001, after 11 years, the respondent filed affidavit in support of her claim. On 12.09.2003, the Labour Court after hearing the parties passed the aforesaid award.
3.0 This Court while admitting the matter on 25.06.2004 has passed the following order :
“Rule. Adinterim relief against backwages only. Notice as to interim relief returnable on 30th July, 2004.
4.0 In that view of the matter, the only question which is required to be considered by this Court is qua backwages. Even otherwise I am in complete agreement with the reasonings adopted and findings arrived at by the Labour Court qua reinstatement and therefore in my opinion the award qua reinstatement is not required to be interfered with.
5.0 However, from the award it appears that the Labour Court has granted backwages without giving any cogent and valid reasons. 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 lumpsum 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 stenotypist, 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 TribunalcumLabour 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 TribunalcumLabour Court insofar as it directs reinstatement with continuity of service is upheld by the award regarding payment of 50% back wages is set aside.”
5.1 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.6341 and in the case of U. P. State Brassware Corpn. Ltd., & Anr., v. Udai Narain Pandey reported in 2005 AIR S.C.W. pg.6314. Hence, I am of opinion that the respondent cannot be said to be entitled for back wages. In view of the same order regarding 20% back wages is required to be quashed and set aside.
6.0 In the premises aforesaid, this petition is partly allowed. The award granting backwages is quashed and set aside. The award of reinstatement with continuity of service is confirmed. The award of the Labour Court is modified to the above extent. Rule is made absolute accordingly with no order as to costs.
7.0 It is observed that there was no stay against reinstatement and the respondent ought to have joined service. Therefore the continuity of service will be considered only for retirement purpose.
(K.S.JHAVERI, J.) niru*