1. By way of these petitions, the petitioner has challenged the common judgment and award passed below Exh.44 in Reference(LCR) Nos.61/2009, 63/2009, 68/2010, 69/2010, 78/2009, 79/2009, 80/2009, 414/2009, 415/2009, 416/2009, 439/2009 on 05.04.2012 by the learned Presiding Officer, Labour Court No.1, Rajkot.
2. The short facts as per the petitions are as under:
2.1 The industrial disputes were raised by the respondent workmen before the Assistant Labour Commissioner and the Assistant Labour Commissioner referred the said references to the Labour Court for adjudicating the issue as to whether the workmen were required to be reinstated at their original posts with back wages or not. The respondent workmen had filed statements of claim. The petitioner had also filed written statements.
2.2 After considering the statements of claim, written statements, depositions and other evidences, the Labour Court partly allowed the references vide its common judgment and award dated 05.04.2012, directing that the respondent workmen be reinstated at their original posts with 10% back wages with continuity of service. It was further ordered to pay Rs.1000/- as against the cost of each reference.
3. Mr. Kkshayap Pujara, learned advocate for the petitioner has contended that there is an error in the common judgment and award passed by the Labour Court. The Labour Court has itself given a finding that there was a delay in approaching the Labour Court and therefore, the order is required to be quashed and set aside.
4. Mr. Mukesh Rathod, Learned advocate for the respondents has supported the order of the Labour Court.
5. Heard the learned advocates. As far as the order regarding reinstatement is concerned, the same is just and proper. However, so far as the direction regarding grant of continuity of service is concerned, I am of the view that the Labour Court has committed an error in granting continuity of service. Further, the direction regarding grant of 10% back wages is concerned, no averment regarding back wages has been made by the respondent workmen in their statements of claim. Even otherwise, in view of the principle laid down by the Apex Court in the case of Ram Ashrey Singh Vs. Ram Bux Singh, (2003), II L.L.J. Pg.176, a workman has no 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. Similar principle has been laid down by the Apex Court in the case of General Manager, Haryana Roadways Vs. Rudhan Singh J.T. 2005 (6) S.C. pg.137 [2005/(5) S.C.C.
pg591], wherein, it has been held that an order for payment back wages should not be passed in a mechanical manner, but a host of factors are to be taken into consideration before passing any such order.
6. For the foregoing reasons, these petitions are partly allowed. The impugned award passed by the Labour Court is quashed and set aside qua granting continuity of service and 10% back wages. Rest of the award shall remain unaltered. The order of the Tribunal is modified to the above extent.
In view of the above, the petitions stand disposed of. Rule is made absolute to the above extent in each petition.
(K.S.JHAVERI, J.) Chandrashekhar*