Gujarat High Court Case Information System
Print
SCA/9351/2008 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9351 of 2008
For Approval
and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
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 ?
=========================================================
HARIVADAN
@ HARIBHAI NANDUBHAIPATEL - Petitioner(s)
Versus
MANAN
ROADWAYS - Respondent(s)
=========================================================
Appearance
:
MR
KR KOSHTI for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 17/07/2008
ORAL JUDGMENT
In
this petition, the petitioner has challenged an award dated 14.3.2008
passed by the labour court, Surat in reference (LCS) No.76/95
whereby, the labour court has partly allowed the said reference by
directing the respondent herein to reinstate the present petitioner
with continuity of service and to pay 50% of back wages.
The
facts coming out, about the dispute, from the impugned award and
relevant for the purpose of present petition, are recapitulated
below:-
The
petitioner herein approached the labour court by raising industrial
dispute challenging his termination from service by the respondent
herein. The petitioner’s case before the labour court was that he was
employed by the respondent w.e.f. 15.5.88 in its Ahmedabad branch –
office as a clerk and subsequently, when a branch – office was
started at Surat, he was transferred to the said Surat branch ?
office and that while he was working at Ahmedabad branch – office he
was being paid Rs.2,000/- pm and after he was transferred to Surat,
his salary was enhanced to Rs.2,500/-pm but when he started making
demands for his rights including full salary in accordance with law,
his service was orally terminated w.e.f. 31.12.93.
Mr.
Koshti appears for the petitioner. He submitted that the petitioner
has preferred present petition for challenging the award to the
limited extent by which the 50% of the back wages is denied to the
petitioner because the labour court has erred in denying the balance
50% of back wages to the petitioner. He further submitted that it is
only on presumption and without any justification that the labour
court has denied the benefit of balance 50% of back wages. He also
submitted that the delay of 13 years in concluding the proceedings
cannot be attributed to the petitioner alone, more particularly, when
at two different stages, the reference was decided ex-parte and
proceedings were restored at the request of the present respondent.
The
reference proceedings were decided ex-parte once by ex-parte award
dated 22.12.2005 in respect of which the application under Rule-26(A)
was preferred and numbered as Misc. Application No.43/2006. However,
to support his contention that reference proceedings were decided
twice, Mr. Koshti relied upon a copy of the order dated 28.11.2006
passed in said Misc. Application No.43/2006 wherein, the labour court
has made reference of another restoration application No.41/2003. On
the basis of the said details, Mr. Kosti submitted that the delay in
the proceedings may not be attributed to the petitioner and on that
count it would not be justified to deny balance 50% of the back
wages.
On
perusal of the impugned award it transpires that aggrieved by the
action of the respondent the petitioner had raised an industrial
dispute which culminated into the said reference. The orders of
reference appears to have been made in 1995. The said reference was
at one stage decided ex-parte on account of absence of the respondent
herein. Thereafter, the respondent employer preferred Misc.
Application being Misc. Application No.43/2006 under Rule-26(A) of
the Rules framed under the Industrial Disputes Act, 1947 and prayed
for restoration of the proceedings of the said reference. The labour
court was pleased to pass an order dated 28.11.2006 and allowed the
said Misc. Application and restored to file the proceedings of the
reference. The said order dated 28.11.2006 was challenged by the
present petitioner by way of writ petition being special civil
application No.21921/2007. In the said proceedings, appearance on
behalf of the present respondent was entered and a statement on
behalf of the present respondent was made before this court that
without prejudice to the rights and contentions, the respondent was
ready to reinstate the petitioner. This court (Coram: Hon’ble Mr.
Justice S.R.Brahmbhatt) passed an order dated 28.9.2007 recording the
said statement of the present respondent and directed the labour
court to decide the reference (the proceedings of which were already
restored by the labour court vide order dated 28.11.2006) preferably
within a period of 4 months. With such observation, the said petition
was disposed of by virtue of the order dated 28.9.2007.
It
appears that pursuant to the said order of this court in the
proceedings commenced before the labour court and the respondent
filed written statement wherein the respondent claimed the petitioner
was working as a peon and not as a clerk as claimed by the petitioner
and that the transfer to Surat was effected at the request of the
petitioner, however, in 1995 the said branch – office of the
respondent could not be sustained and therefore, the same had to be
closed and despite such fact ? situation the respondent had shown
readiness to reinstate the petitioner and the respondent was ready
and willing to allow the petitioner to resume his duties. During the
proceedings, depositions of petitioner and of a partner of the
respondent were recorded. After evaluating the documentary and oral
evidence obtaining on record, the labour court came to the conclusion
that the service of the petitioner herein was terminated by the
respondent and that the petitioner was entitled for relief of
reinstatement. The labour court also took notice of the statement
made on behalf of the respondent in the proceedings before this
court. The labour court has also reproduced in the impugned award
some of the portion of the deposition of the respondent’s partner –
witness from which it appears that the said witness admitted that the
petitioner was working as a clerk and it was for the first time that
during the proceedings before this court that the respondent had
shown readiness to reinstate the petitioner and that no notice or
charge-sheet was served to the petitioner.
While
reproducing the deposition of respondent’s witness, the labour court
has also recorded that since 1994, the respondent establishment i.e.
Manan Roadways is closed and is not functioning and that the Surat
branch – office is also closed and not functioning. The labour court
found it just and proper to direct the respondent to reinstate the
present petitioner.
So
far as the challenge against the impugned award which deny 50% of
back wages to the petitioner is concerned, at the outset, it is
required to be noted that while the petitioner claimed that his
service was orally terminated w.e.f. 31.12.1993, he appears to have
initiated the proceedings for raising industrial dispute after lapse
of some time inasmuch as the order of reference is made in March,
1995 i.e. after almost one year.
Further,
in his deposition, the petitioner herein has admitted that he is
residing in rented premises for which he pays rent of Rs.800/- pm.
Since
the petitioner has chosen not to produce copy of the depositions on
record, it is only from the award that one has to gather the details
of the oral evidence.
From
perusal of the award, it appears that the petitioner herein has
admitted that he has two children; a daughter (of 15 years) and a son
(of 19 years) and his son is studying in engineering faculty. The
petitioner also admitted that he is a Commerce graduate.
It
appears from the award that while considering the issue regarding
back wages, the labour court has taken into consideration the
aforesaid details coming out from petitioner’s evidence and has also
taken into account that part of respondent’s evidence, which is not
disproved by the petitioner viz. the establishments of the respondent
in Ahmedabad as well as Surat have been closed down. The court has
also considered that the proceedings have been continued for almost
13 years. Thus, the labour court appears to have considered the
relevant aspects while deciding the issue of back wages.
In
submissions of Mr. Koshti, learned advocate for the petitioner, the
delay in conclusion of the proceedings cannot be attributed to or
held against the petitioner particularly because the reference
proceedings were twice decided ex-parte. Even after considering the
said aspect the fact remains that the order of reference was made
after almost one year since the alleged date of termination and after
the order dated 28.11.2006 restoring the proceedings almost 11 months
were consumed in the proceedings preferred by petitioner challenging
the order of lower court restoring the reference proceedings. From
the reading of the award, it transpires and becomes clear that the
labour court has examined the relevant aspects while deciding the
issue regarding back wages and while denying the 50% back wages. The
factors which have been taken into account for not granting 50% back
wages cannot be considered irrelevant or extraneous, much less
perverse. The labour court appears to be mind full of the expenses
which a family of four persons with two growing children pursuing
their studies has to incur and also the fact that the petitioner pays
Rs.800/- rent per month. In the circumstances, no error can be found
in labour court’s observation that the petitioner could not have
carried-on all such obligations without being employed. Such
reasoning of labour court cannot be brushed aside or ignored as
baseless or mere ipse dixit. Thus, it is after taking into
account relevant aspects that the court considered it appropriate to
not grant 50% of back wages. The benefit of back wages should not be
granted mechanically or automatically as a request to the benefit of
reinstatement.
By
now it is settled legal position in light of the judgment of the
Hon’ble Supreme Court in General Manager, Haryana Roadways V/s.
Rudhan Singh reported in [2005(5) SCC 591] that
while deciding the issue regarding back wages, several factors and
aspects have to be taken into account by the labour court.
In
the present case, since it is the workman who has approached this
court by way of present petition demanding the balance 50% of back
wages, this court does not consider it appropriate to examine the
issue as to whether the labour court was right and justified in
awarding 50% of back wages or not. However, on perusal and
examination of the award and on examining the reasons recorded by the
labour court in not granting the balance 50% of back wages, it cannot
be said that the labour court has committed any error of law or
jurisdiction while not granting the balance 50% of back wages and it
also cannot be said that the award is perverse and / or unsustainable
with regard to the denial of balance 50% of back wages. Hence, the
impugned award does not warrant any interference and the case of the
petitioner also does not warrant enhancement of benefit of back wages
and this court also does not find any merit in the petition claiming
modification of award so as to grant higher rate of back wages. Thus,
the petition is not entertained and the same is rejected.
[K.M.Thaker,
J.]
kdc/tfxps1
Top