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SCA/3731/2001 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3731 of 2001
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 ?
=========================================================
VADHVAN
MECHANICAL WORKS - Petitioner(s)
Versus
RAHEMAN
SULTAN - Respondent(s)
=========================================================
Appearance :
MR
RV DESAI for
Petitioner(s) : 1,
UNSERVED-REFUSED (R) for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 17/08/2010
ORAL
JUDGMENT
1. The
endorsement on the Board indicates that the respondent has refused
the notice. Hence, the matter is taken up for hearing today.
2. By
way of this petition, the petitioner has prayed to quash and set
aside the impugned award dated 28.08.2000 passed by the Labour Court,
Ahmedabad in Reference [LCA] No. 2488/1988, whereby the Labour Court
has directed the petitioner to reinstate the respondent in service on
his original post with continuity of service and full back wages.
3. The
short facts of the case are that the respondent at the relevant time
was working on the post of Helper with the petitioner. As the
respondent was found committing theft of ball bearing materials from
the petitioner Company, the respondent on 11.03.1988 voluntarily
resigned from the service. Thereafter, the respondent raised a
dispute which was ultimately referred to the Labour Court for
adjudication being Reference [LCA] No. 2488/1988. Before the Labour
Court both the parties adduced evidence and after appreciating the
material produced before it, the Labour Court allowed the reference
with the aforesaid directions. Hence, this petition.
4. Heard
learned counsel for the petitioner and perused the documents on
record. It appears from the record that the respondent had not
voluntarily resigned from the service and that the petitioner had not
communicated any letter regarding the confirmation of the resignation
tendered by the respondent workman. The said fact can be established
from the documents at Exhibits-19 and 20. However, there is no
evidence on record to establish that the petitioner had paid any
amount towards gratuity or other benefits, to the respondent for
voluntarily resigning from the service. Apart from that the
respondent had been working with the petitioner since last 17 years.
Therefore, I am of the view that the Labour Court has rightly passed
the award qua reinstatement with continuity of service.
5. So
far as the question of back wages is concerned, the Labour Court has
not given any cogent reasons for awarding back wages to the
respondent workman. In view of the principle laid down by the Apex
Court in the case of Ram Ashrey
Singh v. Ram Bux Singh reported
in (2003) II L.L.J. 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
reported in J.T. 2005(6) SC 137
[2005(5) SCC 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.
6. 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
reported in (2005) 6 SCC 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. In above view of the matter, I am of the opinion that
the respondent cannot be said to be entitled for back wages.
7. In
the result, the petition is partly allowed. The impugned award, qua
back wages is quashed and set aside. The award qua reinstatement with
continuity of service is confirmed.
The award of the Labour Court is modified accordingly. Rule
is made absolute to the aforesaid extent with no order as to costs.
Registry
is directed to send R & P to the concerned Labour Court
forthwith.
[K.S.
JHAVERI, J.]
/phalguni/
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