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SCA/6259/2010 1/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6259 of 2010
With
SPECIAL
CIVIL APPLICATION No. 6260 of 2010
To
SPECIAL
CIVIL APPLICATION No. 6262 of 2010
With
SPECIAL
CIVIL APPLICATION No. 8068 of 2010
To
SPECIAL
CIVIL APPLICATION No. 8071 of 2010
=========================================================
POPAT
FAGANA GAMAR & 3 - Petitioner(s)
Versus
DY.EXECUTIVE
ENGINEER - Respondent(s)
=========================================================
Appearance
:
MR UT
MISHRA for
Petitioner(s) : 1 - 4.
MR K.P. RAVAL AGP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 16/07/2010
ORAL
ORDER
All
these petitions involve common questions on law and facts and
therefore, they are disposed of by this common order.
1. These
cross-petitions are directed against the common judgment and award
passed by the Labour Court, Himmatnagar in Reference (LCH)
Nos.371/1996, 377/1996, 381/1996 & 391/1996 dated 30.01.2010,
whereby, the reference preferred by the petitioner-workmen were
allowed and the respondent-State has been directed to reinstate the
workmen to their original post with continuity of service & other
consequential benefits but, without any back wages.
Special
Civil Application Nos.6259/2010 to 6262/2010 have been preferred by
the workmen against the impugned award whereby, they were not granted
any back wages, whereas, Special Civil Application Nos.8068/2010 to
8071/2010 has been preferred by the State, whereby, they have been
directed to reinstate the workmen to their original post with
continuity of service & other consequential benefits.
2. The
facts in brief are that the petitioner-workmen were working as
Rojamdar Labourers with the
respondents. On the ground that their services were illegally
terminated by the respondent on 05.09.1991, they raised an industrial
dispute, which, ultimately, culminated into References before the
Court below. The Labour Court, after considering the evidence on
record, partly allowed the References by passing the impugned award.
Hence, these petitions.
3. Heard learned counsel for
the respective parties and perused the documents on record.
4. This
is a classic case where one can witness the wastage of public money
by the concerned Officers in the Government Department,
who, on account of their callous attitude and utter disregard to the
orders issued by the Court of law, have caused serious damage to the
Public Exchequer. In the following paragraphs, this Court would
highlight the instances or lapses on the part of the Officer
concerned, which has resulted into serious damage to the Government.
5. In the proceedings before
the Court below, the respondent-State had filed reply, which ran into
only two pages. The averments made in the said reply are general in
nature and no specific details have been provided. Apart from that
vide order passed below Ex.37, the Court below had directed the
respondent-State to produce certain documents on record. It was
further directed that if the same were not available, then an
Affidavit in that respect, sworn by the concerned Officer, be
produced on record. However, in spite of the aforesaid order below
Ex.37, neither any document/s nor any affidavit as aforesaid, was
produced on record.
6. It is a pitiable
situation and a sorry state of affairs in the Government Departments
when it comes to dealing with matters pending before Courts of law.
Time is ripe that the Government frames strict guidelines so as to
fix responsibility on the official concerned and to ensure that the
officials act promptly and respect the orders passed by Courts of
Law.
7. So
far as the merits of the case are concerned, there is evidence
on record to show that during the period 1989 to 1991, the
petitioner-workmen had worked for more than 240 days every year. It
also transpires that before terminating the services of the
petitioner-workmen on 05.09.1991, the respondent-State had not issued
any notice or paid any notice pay or retrenchment compensation to the
workmen and had thereby, violated the mandatory provisions of Section
25F of the Industrial Disputes Act, 1947. Thus, the impugned action
of the respondent was found to be illegal and contrary to the settled
principles of law.
8.
On the question of back wages, it appears from the record that the
workmen were gainfully employed during the interregnum period.
Moreover, the respondent is a Government Department. 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.
9.
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 petitioner-workmen cannot be said to be
entitled for any back wages.
10. In view of the above
discussion, I am of the opinion that the Court below was completely
justified in passing the impugned award. I am in complete agreement
with the reasonings given by and the findings arrived at by the Court
below and hence, find no reasons to interfere with the same.
11. For the foregoing
reasons, all the petitions are rejected. It is, however, clarified
that the petitioner-workmen shall be granted the benefit of
continuity of service but, the interregnum period shall be treated as
dias-non. To avoid further payment of idle wages to the
petitioner-workmen from 01.02.2010, the respondent is directed to
reinstate the petitioner-workmen, as per the directions issued in the
impugned award, on or before 02.08.2010. No costs.
[K.
S. JHAVERI, J.]
Pravin/*
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