1. By way of this petition, the petitioner has challenged the judgment and award dated 09.03.2006 passed by the Labour Court, Rajkot in reference in LCR No.378/91, whereby the Labour Court has granted continuity of service with 15% back wages. As pending the reference of the respondent workman, he was reinstated in service, no order for reinstatement was passed.
2. The present petition has been preferred with the following reliefs:
“A. Your Lordships may be pleased to issue writ of Mandamus or writ of certiorari or any other writ order or direction to quash and set aside the judgment and award passed on 09-03-2006 in LCR No.378/91.
B. Pending hearing and final disposal of the petition, Your Lordships may be pleased to stay the implementation, execution and operation of the judgment and award dated 09-03-2006 passed in LCR No.378/91.
C. The Hon’ble Court be pleased to grant any other and further relief/s in the interest of justice.”
3. The short facts of the case are that the Assistant Labour Commissioner, Rajkot had referred the reference under Section 10(1) of the Industrial Disputes Act to the Labour Court, Rajkot for adjudicating the issue that whether the respondent workman is required to be reinstated on his original post with full back wages or not? The respondent had filed statement of claim before the Labour Court, Rajkot. The petitioner had also filed written statement. After considering the claim statement, written statement, deposition and other evidences, the Labour Court had passed the order dated 09.03.2006.
4. Mr. Kkshayap Pujara, learned AGP for the petitioner has submitted that the order of the Labour Court is contrary to the provisions of law. As per Section 10(4) of the Industrial Disputes Act, the Labour Court cannot expand the scope. The Labour Court has granted the continuity of service and hence, the same is in violation of provision of Section 10(4) of the Industrial Disputes Act. He further submitted that the respondent was transferred and hence, it cannot be said to be termination. The respondent himself had abandoned the job. He also submitted that in the present case, it has not been established that he was a workman, the employer is an industry and there was a relationship of master and servant between the employer and employee.
5. Though served, the respondent has not entered appearance.
6. Heard Mr. Kkashyap Pujara, learned AGP for the petitioner.
7. Keeping in mind, the reinstatement order has already been passed pending the reference, no order is required to be passed regarding the same. The order regarding continuity of service is just and proper. However, so far as the direction regarding grant of 15% back wages is concerned, no averment regarding back wages has been made by the respondent workmen. 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.
8. For the foregoing reasons, this petition is partly allowed. The impugned award passed by the Labour Court is quashed and set aside qua 15% 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 petition stands disposed of. Rule is made absolute to the above extent.
(K.S.JHAVERI, J.) Chandrashekhar*