Aforesaid Misc.Civil Application NO. 405 of 2002 has been filed by the original petitioner GSRTC for recalling the orders dated 22nd March, 2002 passed by this Court in the main matter whereby the main matter has been ordered to be dismissed for default in absence of the learned advocate for the petitioner. Learned advocate Mr. Shah appearing for the original respondent workman has no objection if the orders dated 22nd March, 2002 dismissing the main matter for default are recalled and the matter is restored to the file of this court. Therefore, considering the averments made in the present miscllaneous civil application and also considering that Mr.Shah has no objection in restoring the main matter, the order dated 22nd March, 2002 passed by this court in Special Civil Application No. 13482 of 2000 is hereby recalled and the said petition is ordered to be restored to the files of this court. Accordingly present Misc. Civil Application is disposed of with no order as to costs.
Pursuant to the above orders, Special Civil Application No. 13482 of 2000 has been restored by this Court on the files of this Court. With the consent of the learned advocates for both the sides, the said special civil application has been taken up for final hearing today itself.
Learned advocate Mr. Munshaw has appeared for the petitioner and Mr. S.K.Shah has appeared for the respondent workman. In this petition, rule has been issued by this court on 1st August, 2001 and interim order has also been granted. Reply to the present petition has been filed by the respondent workman.
By way of this petition, the petitioner corporation is challenging the award made by the labour court Baroda in Reference No. 750 of 1992 dated 31st January, 2000 whereby the labour court concerned has granted back wages in favour of the respondent workman from the date on which the respondent had proceeded on leave till the retirement of the respondent i.e. 31st March, 1998.
According to Mr. Munshaw, the labour court has erred in granting back wages in favour of the respondent workman. He has submitted that the respondent had applied for leave for a period of one week which was sanctioned by the corporation and in the meantime, the respondent was transferred by the corporation from Dabhoi Depot to Bodeli Depot. The transfer order as well as the order relieving the respondent both were communicated to the respondent and were duly received by the respondent and yet the respondent had failed to report at the place of his transfer and he remained absent and, therefore, he was served with notices dated 22nd July, 1992, 1st December, 1992, 23rd December, 1992 with a clear direction to report at Bodeli but the respondent failed to report at Bodeli in terms of the directions issued to the respondent in the said notices and he thus remained absent from duty. He has submitted that the respondent was working as a Driver in Daboi Depot and was transferred to Bodeli Depot. According to Mr. Munshaw, it was not a case of dismissal, discharge, termination or retrenchment of a workman but in this case, the respondent himself has failed to report and, therefore, the labour court has erred in granting reliefs in favour of the respondent workman. He has also submitted that the matter remained pending before the labour court for a period of about 7 years and meanwhile the respondent reached the age of superannuation on 31st March, 1998. He further submitted that in the mean time, no efforts were made by the respondent and the respondent workman has not approached the office of the petitioner corporation with a request to permit him to resume duties at Bodeli Depot and, therefore, there was inaction on the part of the respondent workman and, therefore, labour court ought not to have granted reliefs in favour of such a person. He has further submitted that one letter was addressed to the respondent wherein the respondent was directed that if he will report at Bodeli, then, his case for retransfer to Dabhoi Depot will be considered but he has not reported first at Bodeli and, therefore, the labour court has erred in exercising the discretion in favour of such a person.
On the other hand, learned advocate Mr.Shah appearing for the respondent workman has submitted that the respondent has not received the order of his transfer and relieving order and he was visiting the office of the Depot Manager,Bodeli for resuming duties but the Depot Manager asked him to get relieved from Dabhoi Depot first and to bring relieving order which was not with him as the same has not been served upon the respondent and, therefore, he was, thus, not allowed to resume duties at Bodeli. Mr. Shah has further submitted that there was long correspondence between the respondent workman and the corporation wherein requests were made to permit him to join at Bodeli but no response has been given to such requests made by the respondent. He has submitted that before the labour court, the respondent was examined at Exh. 20 and the petitioner corporation has led no oral evidence before the labour court and no documentary evidence has been produced by the petitioner before the labour court. He has further submitted that the petitioner has not produced any transfer order or relieving order before the labour court and has also not proved before the labour court that such orders were served upon the respondent. According to him, in absence of such proof, the labour court was right in considering the evidence on record and in granting relief of back wages in favour of the respondent and, therefore, this Court should not interfere with the award in question in exercise of the powers under Article 226/227 of the Constitution of India.
I have considered the submissions made by the learned advocates for the parties. I have also considered the award of back wages made by the labour court concerned. It is required to be noted that the respondent was working as a driver in the corporation since 9th June, 1973 and on the basis of certain allegations, he was served with charge sheet and thereafter fine of Rs.50.00 has been imposed upon the respondent in past thereafter, appeal was preferred which was heard by the appellate authority on 28th February, 1991 at Dabhoi and meanwhile, since the respondent was sick, he submitted leave report on 7th March,1991 and thereafter, the respondent had gone to resume at Dabhoi but was not allowed to resume duties at Dabhoi only on the ground that he was transferred from Dabhoi to Bodeli but from the record, it does not appear that the order of transfer and relieving order has been served upon the respondent. There is no evidence on record to show that such orders were duly served upon the respondent. There is no evidence on record to show that the evidence to that effect has been produced by the petitioner before the labour court. Even before this court also, the petitioner has not been able to produce any documentary evidence to show that the order of transfer and relieving order both were duly served upon the respondent. In light of these peculiar facts, the labour court has considered one letter dated 16th February, 1998 which was written by the Depot Manager, Bodeli Depot to the administration office wherein it has been mentioned that the respondent was working at Dabhoi Depot and was transferred to Bodeli Depot by establishment order but the relieving order has not been received and, therefore, he has not been resuming and as a result of it, he has raised industrial dispute and, therefore, it has been requested not to initiate departmental inquiry against the respondent workman. This letter written by the Depot Manager to the Administrative Officer was placed by the respondent workman before the labour court. Therefore, the labour court considered the oral evidence of the respondent and this letter dated 16th February, 1998 and has come to the conclusion that the respondent was not allowed to resume duties in absence of relieving order. The labour court also considered one more fact that no transfer order and relieving order has been produced by the petitioner before it. The labour court also considered that there was certain correspondence between the corporation and the respondent which was produced by the respondent before the labour court wherein requests were made by the workman to the authority concerned to allow him to resume duties at Bodeli Depot. Against such correspondence produced by the respondent before the labour court, the corporation has not led any evidence to show that as such no such requests were made by the workman. Therefore, in light of these undisputed facts, the labour court granted only back wages for intervening period upto 31st March,1998 since the respondent has already reached the age of superannuation on 31st March, 1998.
Thus, there was no question of issuing any direction for reinstatement of the respondent since the respondent has already reached the age of superannuation in the mean time. The only question before the labour court was whether the respondent is entitled to any back wages or not during the intervening period. The labour court, without considering whether the respondent has remained unemployed during the intervening period, has granted full back wages for a period upto 31st March, 1998. The another reason is that the reference has remained pending before the labour court for about seven years for no fault either of the petitioner or the respondent workman. The petitioner is a public body and state authority. It is also mentioned by Mr. Munshaw that the transfer and relieving order both were served upon the respondent workman by way of Registered Post A.D. and the AD Slips are with the corporation. However, copy of such originaloriginal RPAD Slip has also not been produced on the record of the labour court and that is how in absence of the documentary evidence, the labour court has granted full back wages for interim period. In such a situation, the labour court has come to the conclusion which was based on the facts before it and that is how these are the findings of fact given by the labour court on the basis of the evidence before it. Thus, these are the pure findings of facts and, therefore, unless it is demonstrated by the petitioner that such findings of fact recorded by the labour court are perverse or contrary to the evidence on record, this Court cannot reappreciate the same. While recording such findings of fact, the labour court has also considered the letter of the depot manager, Bodeli and has come to the conclusion that the denial to resume duties amounts to termination. Not to allow to resume duties to a workman when he was working with the corporation amounts to denial of employment to the respondent workman and therefore the labour court has passed the award of only backwages since the respondent has already reached the age of superannuation. However, upon perusal of the award in question, it is clear that while considering the question of back wages, the labour court has not considered the fact whether the respondent has remained unemployed or not during the intervening period. The respondent was working as a driver with the Corporation. Naturally, presumption must be drawn against the respondent that he must have earned something by doing work of driver during the intervening period. Therefore, considering the fact that the petitioner is a public body and the respondent was working as a driver, and also considering the fact that from the award, it is not clear whether the respondent has remained unemployed or not during the intervening period, according to my opinion, award of full back wages for the intervening period is required to be reduced from 100 per cent to 50 per cent for the intervening period.
Similar situation was before the apex court in case of Management of M.C.D. versus Prem Chand Gupta reported in AIR 2000 SC 454. In para 18 and 19 of the decision, the apex court has observed as under :
"18.We have now reached the stage for considering appropriate relief to be granted in the light of our findings on point no. 2. Once it is held that termination of the respondent workman on 29.4.1988 was null and void being violative of section 25-F of the I.D. Act, the logical consequence would be that he would be entitled to be reinstated in service with continuity and in normal course would be entitled to full back wages. However, in our view on the peculiar facts of this case, it will not be appropriate to grant full back wages to the respondent workman even though he will be entitled to be reinstated in service of the appellant Corporation with continuity and all further consequential benefits on that score, save and except the grant of full back wages, as indicated hereinbelow.
19.The reasons for non granting full back wages from the date of his termination of 29.4.1966 till actual reinstatement pursuant to the present order can now be indicated. Firstly, for no fault of the contesting parties, the litigation has lingered on for more than three decades. The termination order was as early as on 29.4.1966 and after 33 years and more it is being set aside. To saddle the appellant corporation and its exchequer, which is meant for public benefit, with full back wages for entire period would be too harsh to the appellant Corporation. It is the delay in disposal of cases in the Courts that has created this unfortunate situation for both the sides. Respondent workman is also not at fault as he was clamoring for justice for all these years. However, this delay in Court proceedings for no fault of either side permits us not to burden the appellant Corporation, being a public body, with full back wages for the entire period of respondent workman's unemployment, especially when for no fault of either side actual work could not be taken from the respondent workman by the appellant corporation. It is true that the respondent workman was always willing to work but he could not be permitted to work so long as the termination order stood against him. The Labour Court as well as the learned Single Judge upheld that order. Only the Division Bench set aside that order. This Court at SLP Stage itself while granting leave stayed reinstatement order on 17.11.1997. two more years since elapsed during the pendency of this appeal before this Court. All these factors together point in the direction of not saddling the appellant corporation a public body with the burden of entire full back wages to be granted to the respondent workman after the passage of 33 years since his order of termination. The second reason is that the respondent workman for all these years could not have remained totally unemployed though there is no clear evidence that he was gainfully employed and was so well off that he should be denied complete back wages. But keeping in view the fact that for all these long years fortunately the respondent workman had survived and has still two more years to reach the age of superannuation as we are told, not granting him full back wages on the peculiar facts of this case, would meet the ends of justice. We, therefore, following order.
1.The impugned order of the Division Bench of the High Court in so far as it holds that the termination order of the respondent workman dated 29.4.1966 was violative of rule 5 of the relevant rules is set aside.
2.However, the final order passed by the High Court ordering reinstatement of the respondent workman with continuity of service is upheld on the alternative ground holding termination of services of the respondent workman on 29.4.1966 to be violative of section 25-F of the I.D.
Act.
3. So far as back wages are concerned, the impugned order of the High Court is modified by directing that the respondent workman will be entitled to get 50 per cent of back wages from the date of his termination i.e. from 29.4.1966 till his actual reinstatement in service of the appellant corporation with continuity of service. The respondent wormkan will also be entitled to all other consequential benefits including increments in the available time scale and revisions of the time scale, if any, and also further service benefits as per the rules and regulations of the appellant Corporation being treated to have been in continuous service of the appellant Corporation from 29.4.1966 all through out till reinstatement. The appellant Corporation shall reinstate the respondent workman with continuity of service within eight weeks from today and will also pay 50 per cent back wages as directed hereinabove within that period. The appellant corporation will grant all other consequential benefits to the respondent workman in light of this judgment. Appeal stands allowed as aforesaid with no order as to costs in the facts and circumstances of the case." Therefore, in view of the law laid down by the apex court in aforesaid decision and also in view of the facts of the present case, the award of back wages at the rate of 100 per cent is required to be reduced and it is required to be confined to the extent of 50 per cent only for the interim period. Accordingly, for the reasons recorded hereinabove, following order is passed.
This petition is partly allowed. The award made by the labour court in Reference No. 750 of 1992 dated 31st January, 2000 is hereby modified to the effect that instead of full back wages as has been granted by the labour court, the respondent workman is entitled for 50 per cent of the back wages for the intervening period from the date of his remaining on leave till the date of his retirement i.e. 31st March, 1998. Rule is made absolute in terms indicated hereinabove with no order as to costs.
Mr. Shah appearing for the respondent workman has requested for issuing some suitable directions to the petitioner corporation to make payment of the back wages as per the award of the labour court as modified by this Court as well as other retiral benefits payable to the respondent within some reasonable period.
Considering the request made by Mr. Shah, it is directed to the petitioner corporation to pay back wages to the respondent workman as per the award made by the labour court as modified by this Court, i.e. at the rate of 50 per cent for the interim period and to pay other retirement benefits payable to the respondent within two months from the date of receipt of copy of this order.
2.4.2002. (H.K. Rathod,J.) Vyas mca40502j