1. The petitioner, first party in Reference (LCA) No. 2086 of 1995 in the Court of Presiding Officer, Labour Court, Amedabad, has approached this Court by way of this petition under Article 226 & 227 of the Constitution of India, inter alia challenging the award & order passed by the Labour Court, where under the Court has while partly allowing the reference directed the petitioners to reinstate the workman with 50% of backwages without any costs vide award & order dated 29/12/2004.
2. The facts in brief leading to filing this petition as could be culled out from the award & order and memo of the petition could be set out as under for the sake of convenience.
The workman claimed that he was in service of the employer since last 8 years prior to his unceremonious termination and he was discharging his duties as Auto Cleaner. On account of his illness since 5/4/1994 he could not attend the duties and the ailment lasted for 7 to 8 months, therefore he was unable to join duties. Thereafter, when he went to join duties with certificate of private doctor, he was not permitted to resume duties and subsequently he was called to resume duties on 16/1/1995. Thus he resumed duty on 23/1/1995 and he worked till 4/2/1995. On 5/2/1995 he was orally informed that he would be relieved of his duties and he was sent letter on 14/3/21995 indicating that as he had unauthorizedly remained absent for all the period his services were terminated. No inquiry whatsoever was ever conducted, no chargesheet was issued, no opportunity for explanation was granted and no provision of section 25F of I.D. Act was followed. Hence the workman was constrained to raise industrial dispute which was referred to competent court where it was registered as (LCA) 2086/1995, wherein after recording evidence the Labour Court came to a conclusion that the workman's claim qua reinstatement was required to be allowed and accordingly it was allowed. However on the question of backwages are concerned, though the workman remained unemployed, it cannot be believed that the workman would have remained idle without earning anything and therefore 50 % backwages was ordered vide order in award dated 29/12/2004, which is subject matter of challenge in the present petition.
3. Learned AGP Ms. Chitaliya contended that the misconduct of unauthorized absent is absolutely undisputed and therefore holding of inquiry was merely a formality. The workman while reinstated for duties also did not indicate any justification for remaining absent nor did he produce any documentary evidence which would have supported his case for justifying unauthorized absence and workman himself has admitted that he was not a regular employee nor was he in any manner entitled to benefits of regular employee. Therefore when adhoc employee has chosen to remain absent there is no question of holding any inquiry or following the procedure of law under section 25F I.D. Act etc.
4. Learned AGP for the petitioner further contended that quantum of backwages was granted on account of sheer presumption that workman would have earned or would not have earned sufficient amount. There is absolutely no justification for granting backwages to the tune of 50% particularly when the workman was admittedly an adhoc employee there was no question of ordering reinstatement also.
5. Shri Desai, learned counsel for the workman contended that it would not be correct to submit on the part of learned AGP that workman was adhoc as could be seen form two orders to which he has invited Court's attention and contended that these two orders indicate that the workman was no more an adhoc employee and he was in fact discharging his duties continuously since 1987. There is finding to this effect by the Labour Court also that workman has completed 240 days in each year and in light of this finding that the workman has put in 5 years continuous service, it would not be justified to say that the workman was an adhoc, but the workman was daily rated employee. Therefore this Court may not interfere with the order in award of the Labour Court and the petition be dismissed.
6. This Court is of the considered view that the Labour Court has not committed any error whatsoever so as to call for interference under Article 226 & 227 of the Constitution of India, as the fact remains to be noted that the workman was in fact discharging his duties and his termination was brought about by way of punishment as he was informed categorically that on account of unauthorized absence of misconduct his services are being brought to an end. Thus, in my view this amounts to stigma for which the workman was entitled to be heard and the employer was required to observe principles of natural justice. In case it is the stand taken by employer that it was discharge simplicitor by way retrenchment, then also, admittedly no provision for bringing about retrenchment was observed. Labour Court has categorically recorded in its finding that the workman has completed 240 days in each year of five years. The Court hasten to add here that even that recording of finding was not required to be made and in fact there was no issue to this effect, as admittedly it was the stand of the employer that the workman's services were terminated on account of his misconduct of unauthorized absence. In light thereof, I am of the considered view that the order impugned before the Labour Court could not have been sustained in any manner. Therefore the Labour Court was left with no option but to pass appropriate order and in fitness of things ordered reinstatement as termination of the workman who was in service since 1987 was brought an end abruptly on branding him to be a person committing misconduct of unauthorized absence. In view of this the order cannot be said to be so untenable as to call for any interference under Article 226/227 of the Constitution of India.
7. This brings the Court to consider factum of granting of backwages. The Labour Court has recorded clearly that workman could not have been able to remain unemployed. When Court has recorded this finding then there was no justification for granting even 50% backwages. The workman was under an obligation to lead evidence in the form of atleast clear statement qua he being unemployed and this statement are not to be opposed for making the order and as the reasoning adopted by the Court does not seem to be justified in granting of backwages and in view of the fact that counsel for the respondent workman did not insist for granting of backwages, the Court is of the view that the order in award qua backwages is required to be modified and accordingly the award is modified.
8. Now, after modification of the award the workman is entitled to reinstatement without any backwages and reinstatement should be on his original post as ordered by the Labour Court. With this observation the petition is partly allowed. Rule made absolute to the aforesaid extent. However there shall be no order as to cost.
9. At this stage learned AGP for the petitioners seeks liberty to retrench the workman after following due process of law. It goes without saying that the petitioners are at liberty to take appropriate action, including retrenchment, as reinstatement of workman otherwise also is ordered without continuity of service. Shri Desai objected to said contention and submits that this is beyond the purview of this petition.
10. The Court is of the considered view that since the Court has decided the matter on the basis of the material available on record, the parties are at absolute liberty to take any action in accordance with law.
11. Shri Desai, does not press the civil application. Accordingly civil application is disposed of. Rule discharged. No costs.
[ S.R. BRAHMBHATT, J ] /vgn