IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 23305 of 2006 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ STATE OF GUJARAT Petitioner(s) Versus MANOJBHAI H. MUNDHVA Respondent(s) ================================================================ Appearance:
MR VISHAL PATEL AGP for the Petitioner(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 1 ================================================================
CORAM : HONOURABLE MR.JUSTICE KS JHAVERI
Date : 24/12/2012 ORAL JUDGMENT
1. By way of this petition, the petitionerState has prayed to quash and set aside the judgment and award passed by the Labour Court, Rajkot in Reference (LCR) No.218/1996 dated 31.12.2005.
2. The facts in brief are that the respondent was serving as a daily wager since the year July, 1994. It is the case of the petitioner that the respondent had worked for 156 days in the year 1994 and 127 days in the year 1995 Thereafter, on 01.05.1995, the respondent abandoned the work. Thereafter, in the year 1996, the respondent raised an industrial dispute, which, ultimately, culminated into a reference before the Court below. The said reference was allowed, whereby, the petitioner was directed to reinstate the respondent on his original post with continuity in service and 25% back wages, by way of passing the impugned order. Hence, this petition.
3. Though served, none appears on behalf of the respondent. Heard learned AGP for the petitionerState. After appreciating the evidence on record, the Court below found that the petitionerState had not complied with the mandatory provisions of Section 25F of the I.D. Act before terminating the services of the respondent though the respondent had worked for 240 days. Therefore, the action of the petitionerState terminating the services of the respondent was illegal and improper and the Court below was completely justified in granting the respondent reinstatement.
4. However, so far as the question of back wages is concerned, the Court below has not given any cogent reasons for awarding back wages to the workman. In view of the principle laid down by the Apex Court in the case of Ram Ashrey Singh v. 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 v. Rudhan Singh, J.T. 2005 (6) S.C.,pg. 137, [2005 /(5) S.C.C.,pg.591], wherein, it has been held that an order for payment of 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.
5. It would also be relevant to refer to a decision of the Apex Court in the case of A.P. State Road Transport & Ors., v. Abdul Kareem, (2005) 6 S.C.C. pg.36, wherein it has been held that a workman is not entitled to any consequential relief on reinstatement as a matter of course unless specifically directed by forum granting reinstatement. Looking to the facts of the case and the principle laid down by the Apex Court in the above decisions, I am of the opinion that the respondentworkman cannot be said to be entitled for back wages. Hence, the impugned award grating back wages deserves to be quashed and set aside.
6. Consequently, the petition is partly allowed. The impugned award of the Labour Court is modified to the extent that the direction qua granting reinstatement to the original post with continuity is confirmed. However, the direction qua granting 25% back wages is quashed and set aside. The benefit of continuity is granted only for the purpose of regularization. The petition stands disposed of accordingly. Rule is made absolute to the above extent with no order as to costs.
(K.S.JHAVERI, J.) /phalguni/