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W.P.No.7157/10
Sitaram Ahirwar The Executive Engineer PWD & another
22.7.2010
Shri Rajneesh Gupta, Counsel for petitioner.
Smt.Sheetal Dubey, Govt. Advocate for respondents.
This petition is directed against the award dated 23.1.2007
Annexure P/5 by which a reference made by the Deputy Labour
Commissioner, Bhopal was allowed in favour of the petitioner and he
was directed to be instated without back wages.
Learned counsel for petitioner submitted that the Labour Court
erred in directing reinstatement of the petitioner without back wages
while petitioner was not in gainful employment, after retrenchment on
22.11.1996. It is submitted that his retrenchment was found illegal and
the petitioner was entitled to be reinstated with full back wages. He has
placed reliance to judgments of the Apex Court in Niranian Cinema Vs.
Prakash Chandra Dubey & another (2007) 14 SCC 349, Managing
Director, Balasaheb Desai Sahakari S.K.Ltd. Vs. Kashinath
Ganapati Kambale (2009) 2 SCC 288, P.V.K.Distillery Limited Vs.
Mahendra Ram (2009) 5 SCC 705 and Malwa Vanaspati and
Chemical Co. Ltd. (2009) 12 SCC 490 in support of his contention and
submitted that minimum 50% of the back wages may be allowed to the
petitioner.
Smt.Sheetal Dubey, learned counsel for State submitted that the
Labour Court rightly reinstated the petitioner without back wages. She
has drawn attention of the Court to the facts that the petitioner was
retrenched from 22.11.1996, reference was made in the year 2002
which was allowed on 23.1.2007 and after nearabout 3½ years of
passing of the award, this petition has been filed. The petitioner himself
was guilty of laches, so the Labour Court rightly directed reinstated of
petitioner without back wages. In the alternative, it was submitted by
Smt.Dubey that in case back wages are allowed, it may be allowed to
the extent of 25%. She has placed reliance to the Apex Court in Depot
Manager, Andhra Pradesh State Road Transport Corporation &
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W.P.No.7157/10
Sitaram Ahirwar The Executive Engineer PWD & another
22.7.2010
another Vs. V.Surender (2008) 12 SCC 169 and Executive Engineer
Water Services Division, Haryaya Vs. Kartar Singh (2009) 5 SCC 44.
To appreciate the rival contention of the parties, we perused the
record and the impugned award. We find that the petitioner was
engaged somewhere in the year 1983 and he remained absent between
1.11.1996 and 18.11.1996. Thereafter, he had not joined the services.
However, treating aforesaid as verbal retrenchment, matter was
agitated before the Deputy Labour Commissioner who referred the
matter to the Labour Court by a reference. The Labour Court recorded a
finding that before retrenchment, no notice or charge-sheet was issued
to the petitioner, no enquiry was conducted and retrenchment
compensation was also not paid to the petitioner herein. The Labour
Court found that as the petitioner worked more than 240 days in
last year before retrenchment and the provisions of Section 25F of the
Industrial Disputes Act were not followed, he was entitled to be
reinstated. But considering peculiar facts of the case, the Labour Court
directed reinstatement without back wages. It is not in dispute that after
retrenchment, reference was made in the year 2002 and it remained
pending for a period nearabout 4 years before the Labour Court. After
passing of the award by the Labour Court, the petitioner has been
reinstated. Looking to the fact that before retrenchment, petitioner was
not served with a notice and no retrenchment compensation was paid,
petitioner was entitled for some part of the back wages. There is no
definite evidence in the case that for the entire period of retrenchment,
petitioner was out of job. Though in his statement, he has stated that he
was unemployed, but no specific statement was made by the petitioner
that for the entire period of retrenchment, he was without any gainful
employment.
In these circumstances, considering peculiar facts of the case,
we find it appropriate to allow 25% of the back wages to the petitioner
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W.P.No.7157/10
Sitaram Ahirwar The Executive Engineer PWD & another
22.7.2010
from the date on which matter was referred to the Labour Court by the
Deputy Labour Commissioner, Bhopal.
Accordingly, this petition is allowed in part and we modify the
award passed by the Labour Court to the extent that the petitioner is
also entitled for 25% of the back wages from the date of order of
reference by the Deputy Labour Commissioner, Bhopal till his
reinstatement by the respondents.
Considering facts of the case, there shall be no order as to costs.
C.C as per rules.
(Krishn Kumar Lahoti) (Sanjay Yadav)
Judge Judge
C.