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LPA/2842/2010 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2842 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8251 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE G.B.SHAH
===============================================
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 ?
===============================================
BHOJABHAI
DANABHAI RABARI - Appellant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
===============================================
Appearance
:
MS MAMTA R VYAS for
Appellant(s) : 1,
GOVERNMENT PLEADER for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date : 02/05/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard Ms. Mamta R Vyas, learned counsel appearing for the
appellant. This Letters Patent Appeal has been filed
by the appellant challenging the judgment dated 29.7.2010 passed by
the learned Single Judge in Special Civil Application No.8251 of
2001 by which the learned Single Judge has partly allowed the writ
petition and set aside the award passed by the Labour Court, Junagadh
in Reference (LCJ) No.15/1996 dated 19.8.2000 so far as the back
wages are concerned and reinstatement with continuity of service has
been confirmed.
2. The
facts in brief are that the appellant was appointed as Rojamdar
Watchman by the respondent department on a particular project. He
had worked for the period from 1985 to 1993 and thereafter, his
services were terminated. The appellant raised industrial dispute and
the Labour Court allowed the claim of the appellant and directed
reinstatement with full back wages. Against the said award, the
respondents filed writ petition before the learned Single Judge which
was partly allowed and the award of the Labour Court was modified to
the extent that grant of full back wages was quashed and rest of the
award was confirmed. The appellant has filed this appeal on the
ground that the appellant was entitled to back wages as evidence was
led before the Labour Court that the appellant was not gainfully
employed during the period.
3. We
are at a loss to understand how the workman or his family could
survive without any employment or income. However, the Apex Court in
series of decisions has held that on reinstatement, back wages cannot
be automatically granted and it is the discretion of the Court to
grant back wages. The Apex Court in a decision
in Chairman-cum-Managing Director, Coal
India Ltd and Others v. Ananta Saha & Others 2011 (4) SCALE 398
held in
para 47 as under:
“The
issue of entitlement of back wages has been considered by this court
time and again and consistently held that even after punishment
imposed upon the employee is quashed by the court or tribunal, the
payment of back wages still remains discretionary. Power to grant
back wages is to be exercised by the court/tribunal keeping in view
the facts in their entirety as no strait-jacket formula can be
evolved, nor a rule of universal application can be laid for such
cases. Even if the delinquent is reinstated, it would not
automatically make him entitled for back wages as entitlement to get
back wages is independent of reinstatement….”
4. The
learned Single Judge, in his judgment held in paragraphs 4 and 5 as
under:
“However,
so far as the question of back wages is concerned, the Court below
has not given any cogent reasons for awarding back wages to the
workman. In view of the principle laid down by the Apex Court in the
case of Ram Ashrey Singh v. Ram Bux Singh, (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. 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.
5.
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 respondent-workman cannot be said to be entitled for
any back wages. Hence, the impugned award grating back wages deserves
to be quashed and set aside. in Ram Ashrey Singh v. Ram Bux Singh,
2003 II L.L.J. 176, in General Manager, Haryana Roadways v. Rudhan
Singh J.T. 2005 (6) SC 137 [2005 (5) SCC 591] and in A.P.
State Road Transport & Ors. v. Abdul Kareem, (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. 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 respondent-workman
cannot be said to be entitled for any back wages. Hence, the
impugned award granting back wages deserves to be quashed and set
aside.”
In
Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar
Seal and Others (2010 6 SCC 773, the Apex Court in para 9 to 11
held as under:
“9.
In the last few years it has been consistently held by this court
that relief by way of reinstatement with back ages is not automatic
even if termination of an employee is found to be illegal or is in
contravention of the prescribed procedure and that monetary
compensation in lieu of reinstatement and back wages in cases of such
nature may be appropriate (see U.P.State Brassware Corpn. Ltd. v.
Uday Narain Pandey, Uttaranchal Forest Development Corporation v.
M.C. Joshi, Statet of M.P. v. Lalit Kumar Verma, M.P.Admn. v.
Tribhuvan, Sita Ram v. Moti Lal Nehru Farmers Training Institute,
Jaipur Development authority v. Ramsahai, GDA v Ashok Kumar and
Mahboob Depak v. Nagar Panchayat, Gajraula).
10.
In a recent judgment authored by one of us (R.M. Lodha, J.) in
Jagbir Singh v. Haryana State Agriculture Mktg.Board, the aforesaid
decisions were noticed and it was stated: (SCC pp.330 & 335,
paras 7 & 14)
“7.
It is true that the earlier view of this Court articulated in many
decisions reflected the legal position that if the termination of an
employee was found to be illegal, the relief of reinstatement with
full back wages would ordinarily follow. However, in recent past,
there has been a shift in the legal position and in a long line of
cases, this Court has consistently taken the view that relief by way
of reinstatement with back wages is not automatic and may be wholly
inappropriate in a given fact situation even though the termination
of an employee is in contravention of the prescribed procedure.
Compensation instead of reinstatement has been held to meet the ends
of justice.
14.
It would be, thus, seen that by a catena of decisions in recent
time, this court has clearly laid down that an order of retrenchment
passed in violation of section 25-F although may be set aside but an
award of reinstatement should not, however, be automatically passed.
The award of reinstatement with full back wages in a case where the
workman has completed 240 days of work in a year preceding the date
of termination, particularly, daily wagers has not been found to be
proper by this court and instead compensation has been awarded. This
court has distinguished between a daily wager who does not hold a
post and a permanent employee.”
11.
In view of the aforesaid legal position and the fact that the
workmen were engaged as daily wagers about 25 years back and they
worked hardly for 2 or 3 years, relief of reinstatement and back
wages to them cannot be said to be justified and instead monetary
compensation would subserve the ends of justice. In our considered
view, the compensation of Rs.40,000 to each of the workmen
(respondents 1 to 14) shall meet the ends of justice. We order
accordingly. Such payment shall be made with 6 weeks from today,
failing which the same shall carry interest at the rate of 9% per
annum.”
5. From
the aforesaid decisions it is clear that the appellant was not
entitled to back wages even though relief of reinstatement has been
granted to him. At the most, the appellant could have claimed for
compensation but such claim was not raised by the
respondent/appellant before the learned Single Judge. Therefore, in
appeal we cannot grant a relief which was not claimed before the
learned Single Judge by the respondent to the writ petition.
6. For the
aforesaid reasons, this appeal is devoid of merit and fails and is
accordingly dismissed.
[V
M SAHAI, J.]
[G
B SHAH, J.]
msp
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