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SCA/7497/1999 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7497 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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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 ?
=========================================================
VERAVAL
PATAN JOINT MUNICIPALITY - Petitioner(s)
Versus
HIRANAND
KISHANCHAND KOTAK - Respondent(s)
=========================================================
Appearance :
MR
RM CHHAYA for
Petitioner(s) : 1,
MR TS NANAVATI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 29/07/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed to quash and set
aside the impugned award dated 05.09.1998 passed by the Labour Court,
Junagadh in Reference [LCJ] No. 1656 of 1990, whereby the Labour
Court has directed the petitioner to reinstate the respondent on his
original post with full back wages.
2. The
short facts of the case are that the respondent at the relevant time
was working as Driver on daily wage basis with the petitioner. The
services of the respondent came to and after 1988. Being aggrieved by
the same, the respondent raised a dispute which was ultimately
referred to the Labour Court for adjudication being Reference [LCJ]
No. 1656 of 1990. 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.
3. The
learned counsel for the respondent has raised a preliminary
contention that in view of the order dated 16.02.2000 passed by this
Court and since there is non compliance of provisions of 17-B of the
Industrial Disputes Act, the main matter cannot be heard. In support
of his say, he has placed reliance on the decision of the Apex Court
in the case of Workmen Reptd. By Hindustan V.O. Corporation
Limited v. Hindustan Veg. Oils Corporation Limited reported in 2000
GLHEL SC 33777, wherein the Court has observed that an
application u/s. 17-B should be disposed of before the principal
petition and it should be disposed of most expeditiously.
4. So
far the preliminary contention raised by the respondent is concerned,
I am of the view that the same does not deserves consideration
inasmuch as the respondent had not preferred any application
for vacating the interim relief granted by this Court vide order
dated 16.02.2000 for a period of almost ten years. It appears that
the workman was not vigilant about his rights. Looking to the facts
of the case, I am of the view that the employee who is not vigilant
about his rights and that he had not preferred any application for
compliance of provisions of Section 17B of the ID Act for almost ten
years, the same cannot be revived at a belated stage. The said
contention is, therefore, rejected.
5. Heard
learned counsel for the respective parties and perused the documents
on record. It appears that the before the Court below the
petitioner was not able to establish that the respondent had not
worked for 240 days in a year. However, before terminating the
services of the respondent, the petitioner had not followed the due
process of law. Therefore, I am of the view that the Labour Court has
rightly passed the award qua reinstatement with continuity of
service.
6. So
far as the direction with regard to grant of back wages is concerned,
it is required to be noted that the Labour Court has given the
benefit of doubt to the respondent while awarding back wages. No
cogent reasons have been given by the Labour Court while awarding the
same. Moreover, 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., pg.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.
6.1. In
the case of General Manager, Haryana Roadways v. Rudhan Singh
reported in J.T. 2005(6) S.C., pg.137, 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. Hence, the impugned award qua granting
back wages is required to be quashed and set aside.
7. For
the foregoing reasons, this petition is partly allowed. The impugned
award of the Labour Court qua granting reinstatement with continuity
of service is confirmed; and, the direction qua awarding back wages
is quashed and set aside. Rule is made absolute to the aforesaid
extent with no order as to costs.
[K.S.
JHAVERI, J.]
/phalguni/
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