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SCA/1456/2004 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1456 of 2004
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 ?
=========================================================
TALUKA
DEVELOPMENT OFFICER - Petitioner(s)
Versus
VELAJI
LAVJI THAKOR - Respondent(s)
=========================================================
Appearance :
MR
HS MUNSHAW for
Petitioner(s) : 1,
MR MUKESH H RATHOD for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 04/08/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed to quash and set
aside the impugned award dated 05.03.2003 passed by the Labour Court,
Kalol in Reference [LCK] No. 306/1990, whereby the Labour Court has
directed the petitioner to reinstate the respondent in service with
35% back wages.
2. The
short facts of the case are that the respondent at the relevant time
was appointed purely on temporary basis and he continued to work as
temporary part time Kotwal. The services of the respondent came to
an end w.e.f. 01.01.1988. Being aggrieved by the said order, the
respondent raised a dispute which was ultimately referred to the
Labour Court for adjudication being Reference [LCK] No.306/1990.
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. Heard
learned counsel for the respective parties and perused the documents
on record. The learned counsel for the petitioner submitted that the
respondent had attained the age of superannuation and therefore there
is no question of reinstatement. However, the Labour Court while
granting reinstatement had observed that the petitioner had not
followed the due process of law before terminating the services of
the respondent. Therefore, I am of the view that the Labour Court has
rightly passed the award qua reinstatement.
4.
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
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.
6. In
the result, the petition is partly allowed. The impugned award qua
back wages is quashed and set aside. The respondent workman is
entitled for the benefits of reinstatement from the publication of
the award. However, it will be open for the petitioner to deduct the
amount paid u/s. 17-B while calculating the salary to be paid on the
basis of regular wages and shall also pay the total dues on the basis
of average work. The impugned award is modified accordingly. The
ensuing monetary benefits from the date of award shall be released
within a period of four months from the date of receipt of writ of
this order. Rule is made absolute to the above extent with no order
as to costs.
[K.S.
JHAVERI, J.]
/phalguni/
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