1.0 The petitioner has challenged the judgement and award dated 26.03.2004 passed by the learned Presiding Officer, Gandhidham in Reference ( L.C.G.) No. 764 of 1996 ( Old No. 154/95) whereby the petitioner was directed to reinstate the respondent on his original post with continuity of service and with full back wages.
2.0 According to the petitioner, the respondent workman was appointed as a Peon from 25.11.1991 to 19.06.1994 with the salary of Rs. 1000/ per month. On 19.06.1994 he committed theft of one cement bag of the Company and Security Officer caught him red handed and the Security Officer reported the same to the petitioner Management. However, complaint is not filed against the respondent by the petitioner.
2.1 After the incident of theft, the respondent was absconding from the very next day and did not report on duty and after about three months, the respondent workman filed complaint before the Assistant Commissioner of Labour at Gandhidham against termination. The Assistant Commissioner referred this dispute to the Labour Court which is numbered as L.C.G. No. 764 of 1996 ( Old No. 154.1994). The Labour Court passed the judgement and award as stated hereinabove.
3.0 Learned counsel for the petitioner has contended that the Labour Court has erred in awarding reinstatement with full backwages though nothing is produced on record that the respondent herein remained unemployed and not earned anything during last 8 years. He has further contended that payment of backwages to the respondent will cause a huge financial burden on the petitioner Management and hence the award of the Labour Court requires consideration.
4.0 Heard learned advocate for the respective parties.
5.0 This Court while admitting the matter on 29.03.2005 has passed the following order:
“ 1. Learned advocate for the petitioner submitted that from very beginning it is the case of the petitioner that the respondent - workman has stopped voluntarily to come at the place of employment. In fact, there is no cessation of services of the respondent - workman by the petitioner. He has also submitted that even today he is ready and willing to make a statement that if the respondent - workman is ready and willing to resume his services the petitioner shall give him employment and will take him in the service and to that effect the letter dated 7-1-2005 is written by the petitioner to the respondent - workman and despite the fact that the respondent workman has not resumed his duties. Back wages are awarded by the Labour Court, Gandhidham vide its award dated 5-3-2004 in Reference (LCG) No. 764 of 1996 (new number), which ought to have been awarded.
2. Though the respondent - workman has been twice served with the notice issued by this Court, neither the respondent - workman nor his lawyer has remained present.
3. Looking to the facts and circumstances of the case and the documents on record, award with regard to reinstatement of the respondent workman in service is not stayed. On the contrary, there is a statement of the learned advocate for the petitioner that the petitioner is ready and willing to reinstate the respondent workman in service and to that effect letter dated 7-1-2005 has also been written by the petitioner to the respondent workman but the respondent - workman has not resumed his duties. This Court has also passed the order on 14-10-2004 by issuing the notice that the award of back wages is stayed but reinstatement of the respondent workman in service is not stayed.
4. In view of the aforesaid facts and circumstances of the case, Rule. The award passed by the Labour Court, Gandhidham dated 5-3-2004 in Reference (LCG) No.764 of 1996 (new number) is hereby stayed for recovery of back wages awarded by the Labour Court. So far as direction of reinstatement of the respondent - workman in service is concerned, the award of Labour Court, Gandhidham shall stand as it is and the same is not stayed.
6.0 Pursuant to the order dated 29.03.2005 passed by this Court, the respondent workman has already been reinstated in service. 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.
7.0 However, from the award it appears that the Labour Court has granted backwages without giving any cogent and valid reasons and 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 has 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.”
8.0 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 case of 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 full back wages is required to be quashed and set aside.
9.0 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.
(K.S.JHAVERI, J.) niru*