1. By way of this petition, petitioner has challenged judgment and award dated 29.09.2004 passed by the Labour Court in Reference (LCA) No. 1009 of 1992 whereby the Labour Court, Anand has allowed the reference by awarding reinstatement of respondent on his original post with 50 per cent back wages with continuity of service.
2. The brief facts of this case are that the respondent was appointed as 'Chowkidar' at Tarapur on 30.6.1981 and he was working as Rojamdar. The services of respondent came to be terminated by the department on 31.7.1986.
3. Being aggrieved by the said action of the petitioner, the respondent-workman raised a dispute which was referred to the Labour Court and numbered as Reference (LCA) No. 1009 of 1992. The Labour Court after hearing both the parties, passed the aforesaid award which is challenged in the present petition.
4. Learned counsel for the petitioner has contended that the Labour Court has erred in passing the said award as there was no employer and employee relationship between the petitioner and also the petitioner is not falling within the definition of an industry. The learned Counsel for the petitioner has further contended that as the respondent was working as 'casual labour', the contention that he had continuously worked for 240 days is not true and in view of the same there was no question of following any procedure under Section 25(F) of the Industrial Disputes Act, 1947, and therefore, the award of the Labour Court is being bad in law, deserves to be quashed and set aside.
5. Learned counsel for the respondent submitted that the Labour Court has considered all the facts and circumstances of the case and no case is made out for interference.
6. As a result of hearing and perusal of the record, I am of the opinion that the issue whether the petitioner is an industry or not, is covered by a full bench judgment of this Court in the case of Gujarat Forest Producers, Gatherers & Forest Workers Union Vs. State of Gujarat reported in 2004(2) GLR 1488. Therefore, the said issue may not be entertained.
7. As regards the second issue, i.e. breach of Section 25(F) is concerned, from the record it is apparent that the respondent workman has worked for more than 240 days. The Labour Court has also recorded a finding that there is violation of provisions of Section 25F of the Act. Therefore, I do not find any reason to interfere with the award of reinstatement with continuity of service. In view of the same, the award passed by the Labour Court is just and proper.
8. However, the Labour Court has not given any reasoning while passing the award for grant of 50 per cent back wages as to on what basis it has awarded the said amount of back wages to the respondent. Looking to the principle laid down by the Apex Court in the case of Ram Ashrey Singh v. Ram Bux Singh reported in (2003) II L.L.J., pg.176, I am of the opinion that the workman cannot be said to have any automatic entitlement to back wages since it is discretionary and has to be dealt with in accordance with the facts and circumstances of each case.
9. Similar principle has been laid down by the Apex Court in the case of General Manager, Haryana Roadways v. Rudhan Singh reported in J.T. 2005(6) S.C., pg.137 [2005(5) S.C.C. pg. 591]; in 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.
10. Hence, I am of opinion that the respondent cannot be said to be entitled for 50 per cent back wages. In view of the same order regarding 50 per cent back wages is required to be quashed and set aside.
10. In the premises aforesaid, this petition is partly allowed. The order qua back-wages is quashed and set aside. The rest of the award is confirmed. The award of the Labour Court is modified accordingly. The respondent-workman is ordered to report for duty on or before 1.1.2013. Rule is made absolute to the aforesaid extent with no order as to costs.
(K.S.JHAVERI, J.) (pkn)