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SCA/6139/2007 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6139 of 2007
With
SPECIAL
CIVIL APPLICATION No. 941 of 2007
With
SPECIAL
CIVIL APPLICATION No. 2096 of 2007
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 ?
=========================================================
ACHARYA
SHRI, – Petitioner(s)
Versus
THAKOR
KESAJI SOMAJI – Respondent(s)
=========================================================
Appearance :[SCA 6139 OF 2007]
MR
KP RAVAL AGP for Petitioner(s) : 1,
MR TR
MISHRA for Respondent(s) : 1,
MR UT MISHRA for Respondent(s) : 1,
Appearance
: [SCA 941 OF 2007]
MR KP RAVAL
AGP for Petitioner(s) : 1,
None for Respondent(s) : 1,
Appearance
:[SCA 2096 OF 2007]
MR KP RAVAL
AGP for Petitioner(s) : 1,
MR MUKESH RATHOD for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 09/08/2010
ORAL
COMMON JUDGMENT
1. As
common questions on law and facts are involved in these petitions,
they are disposed of by this common judgment.
2. In
Special Civil Application No. 6139 of 2007, the petitioner has
challenged the impugned award dated 23.11.2006 passed by the Labour
Court, Ahmedabad in Reference [LCA] No. 416/1999 whereby, the Labour
Court has directed the petitioner to reinstate the respondent in
service with continuity and 60% back wages.
2.1. In
Special Civil Application No. 941 of 2007, the petitioner has
challenged the impugned award dated 23.05.2006 passed by the Labour
Court, Palanpur, in Reference [LCR] No. 307/1996, whereby the Labour
Court has directed the petitioner to reinstate the respondent in
service without back wages.
2.2. In
Special Civil Application No. 2096 of 2007, the petitioner has
challenged the impugned award dated 21.11.2006 passed by the Labour
Court, Surendranagar in Reference [LCS] No. 80/1993, whereby the
Labour Court has directed the petitioner to reinstate the respondent
workman in service without any back wages.
3. The
short facts of the case are that the respondent workmen were working
purely on temporary and ad-hoc on daily wage basis with the
petitioner. The petitioner without assigning any reasons, orally
terminated the services of the respondent workmen. Being aggrieved by
the said order, the respondent workmen raised a dispute which was
ultimately referred to the Labour Court for adjudication. Before the
Labour Court, both the parties adduced evidence and after
appreciating the material produced before it, the Labour Court partly
allowed the references with the aforesaid directions. Hence, these
petitions.
4. Heard
learned counsel for the respective parties and perused the documents
on record. The main contention of the petitioner is that the
respondent workmen were working purely on temporary basis and
therefore, the impugned award passed by the Labour Court is illegal
and unjust. On perusal of the record it transpires that the
respondent workmen had worked for more than 240 days in a year and
before terminating their services, the petitioner had not issued any
notice or paid retrenchment compensation. Apart from that the
petitioner had appointed new persons in place of the respondent
workmen. In view of these findings there is violation of provisions
of Sections 25F, 25G & 25H of the Industrial Disputes Act. The
learned AGP appearing on behalf of the petitioner is not able to
point out anything contrary from the record that the findings of the
Labour Court in this regard are perverse. Therefore, I am of the view
that the Labour Court has rightly passed the award of reinstatement
in 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. For
the foregoing reasons, the following order is passed ;
(i)
Special Civil Application No. 6139 of 2007 is partly allowed. The
impugned award dated 23.11.2006 passed by the Labour Court, Ahmedabad
in Reference [LCA] No. 416/1999 qua back wages is quashed and set
aside. The impugned award qua reinstatement with continuity of
service is confirmed. Rule is made absolute to the above extent.
(ii)
Special Civil Application Nos. 941 of 2007 and 2096 of 2007 are
dismissed. Rule is discharged. Interim relief, if any, stands
vacated.
(iii)
It is, however, made clear that the respondent workman of Special
Civil Application No. 6139 of 2007 will be granted benefit of
continuity of service within a period of six months from today and
the respondent workmen shall be granted difference of the amount from
the date of award till actual reinstatement within a period of six
months from the date of receipt of this order.
[K.S.
JHAVERI, J.]
/phalguni/
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