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SCA/8710/2004 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8710 of 2004
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
MAHESHBHAI
KESHUBHAI BADLANI - Respondent(s)
=========================================================
Appearance :
MS
C.M. SHAH AGP for Petitioner(s) : 1,
MR PRABHAKAR UPADYAY for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 16/08/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed to quash and set
aside the judgment and award passed by the Labour Court, Junagadh in
Reference (LCJ) No.99/1995 dated 04.02.2004, whereby, the said
reference was partly allowed and the petitioner has been directed to
reinstate the respondent on his original post with continuity of
service and 40% back wages.
2. The
facts in brief are that the respondent was working as a Peon with the
petitioner-State since 03.05.1991. However, on 01.09.1994, his
services came to be terminated. Against the said action, the
respondent raised a dispute, which, ultimately, culminated into a
reference before the Labour Court, Junagadh. The Labour Court, after
considering the evidence on record, partly allowed the said
Reference, by passing the impugned award. Hence, this petition.
3. Heard
learned counsel for the respective parties and perused the documents
on record. While appreciating the evidence on record, the Labour
Court found that the respondent had worked for more than 240 days in
the preceding year. However, while terminating his services, the
petitioner had not followed the mandatory provisions of Section 25F
of the Industrial Disputes Act. It is also established from the
record that the respondent was discharging his duties regularly and
that he was not served with any show-cause notice or memo during his
service tenure with the petitioner. After considering the entire
evidence on record, the Labour Court came to the conclusion that the
action of the petitioner, terminating the services of the respondent,
was violative of the provisions of Section 25F of the I.D. Act and
accordingly, directed the petitioner to reinstate the respondent with
continuity of service.
4. However,
so far as the question regarding back wages is concerned, the Court
below has not given any cogent reasons while awarding the same. In
the case of Ram Ashrey Singh v. Ram Bux Singh, (2003)
II L.L.J. Pg.176, the Apex Court has held that 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.
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.
5. 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
respondent-workman cannot be said to be entitled for any back wages.
Hence, the impugned award granting 40% back wages deserves to be
quashed and set aside.
6. For
the foregoing reasons, the petition is partly allowed. The impugned
award passed by the Labour Court is modified to the extent that the
direction regarding reinstatement on the original post with
continuity in service is confirmed and the direction regarding grant
of 40% back wages is quashed and set aside. With the above
modification, the petition stands disposed of. Rule is made absolute
to the above extent with no order as to costs.
[K.
S. JHAVERI, J.]
Pravin/*
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